Petition for Writ of Certiorari — Montana v. Environmental Protection Agency

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

yurt. U.S

In The OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1997

STATE OF MONTANA; LAKE COUNTY, MONTANA;

CITY OF RONAN, MONTANA, a municipal

corporation; TOWN OF HOT SPRINGS,

MONTANA, a municipal corporation,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, an agency of the United States;

CAROL M. BROWNER, Administrator of the

United States Environmental Protection Agency;

CONFEDERATED SALISH and KOOTENAI TRIBES

OF THE FLATHEAD RESERVATION,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Carter G. PHILLIPS JosepH P. MaAzurReEk

SipteY & AuSsTIN Attorney General

1722 Eye Street, N.W. Cray R. SmitH

Washington, DC 20006 Solicitor

(202) 736-8000 Harvey R. Harris*

Assistant Attorney General

Justice Building

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

Counsel for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

971929 MAY 29 1996

QUESTION PRESENTED

Does an Indian tribe have inherent regulatory

authority over a State and its local governments with

respect to discharges into streams and other bodies of

water from fee-owned land within the exterior bound-

aries of the tribe’s reservation?

PARTIES

In addition to the parties listed in the caption, several

irrigation districts organized under Montana law, along

with several individual farmers and ranchers,! had

sought to intervene at the district court level under Fed.

R. Civ. P. 24(a) and (b). The district court denied their

motion to intervene (Pet. at 41a), and the Court of

Appeals affirmed. Pet. at 15a.

! The irrigation districts are the Flathead Joint Board of

Control, the Mission Irrigation District, the Jocko Valley

Irrigation District, and the Flathead Irrigation District; and the

individual farmers and ranchers are Ross Middlemist, Wayne

Maughn, William Slack, and Glenn Murphy.

ili

TABLE OF CONTENTS

Page

MEWRMUIEY PUOMINE ED, ooo oovke eo osscckn co i

IN al a end ik oa ics CERES oka ii

PETITION FOR WRIT OF CERTIORARI............ 1

IRI ee ee 1

oe ceca SEN SEES TERRE Ts a aie tee Mens HC ECR ate a 1

STATUTES AND REGULATIONS INVOLVED ...... 1

SEEN RES TAOS ee iN AE RE SOND ee 2

I. STATUTORY AND REGULATORY BACK-

ARE EINE SIRY SEP EPa Ren anne one ea 4

A ge Ee a re ae 8

A. Administrative Proceedings................ 8

B. Judicial Review of EPA’s Decision.......... Y

REASONS FOR GRANTING THE PETITION....... 10

I. THE COURT OF APPEALS’ APPLICATION OF

THE SECOND MONTANA EXCEPTION CAN-

NOT BE RECONCILED WITH STRATE AND

PRESENTS AN IMPORTANT FEDERAL QUES-

TION CONCERNING THE SCOPE OF THAT

i nS ESRI S ES Gas ORY Ea eA SOD Pela ea 10

Il. THE COURT OF APPEALS’ DECISION HAS

BROAD SIGNIFICANCE NOT ONLY WITH

RESPECT TO FUTURE APPLICATION OF THE

ACT’S TAS PROVISION BUT ALSO IN OTHER

SITUATIONS WHERE THE SECOND MON-

TANA EXCEPTION IS RELIED UPON AS A

BASIS FOR THE EXERCISE OF INHERENT

TRIBAL AUTHORITY OVER NONMEMBERS .. 20

ca 8 SRR SRRED AGG SIPEG BS ete Ren IT aves seb eet ae 23

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1991)............. 18

Blatchford v. Native Village of Noatak, 501 U.S. 775

Ba 2 5 PROM Es eae irae en Soar iy amare See Berar TRAIN re pg 19

Brendale v. Confederated Tribes and Bands of Yakima

Indian Nation, 492 U.S. 408 (1989)............. passim

Cherokee Nation v. Georgia, 30 U.S. 1 (1831).......... 18

Colville Confederated Tribes v. Walton, 647 F.2d 42

(9th Cir.), cert. denied, 454 U.S. 1092 (1981)........ 10

Confederated Salish and Kootenai Tribes v. United

seeten, 457 Pore GG: CS. Gay BS oe ccc cate kears 2

Duro v. Reina, 495 U.S. 676 (E990). vviccnviccwcsec suns 18

Fisher v. District Court, 424 U.S. 382 (1976).......... 15

Moe v. Confederated Salish and Kootenai Tribes, 425

Rink GUS, CRIN ck Obed eS Chaka eR Ld eh ss 3

Montana Catholic Missions v. Missoula County, 200

OTB Bae Cee as aie rae rib obs Hob be Pkeeek ee es 15

Montana v. United States, 450 U.S. 544 (1981) .... passim

Narragansett Indian Tribe v. Narragansett Electric

Co. We Toes Pee CEGE Ce, TGs ces censscvivedeass 17

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

CRS i hin vn ee eOe Eve sw ee RGRs 5d oe oe ee 19

New York v. United States, 505 U.S. 144 (1992)....... 19

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

GOED fs iva vad sb er er aenne leased eee cai ieee 18

TABLE OF AUTHORITIES - Continued

Page

PUD No. 1 v. Washington Department of Ecology, 511

RFs AMT AEOPON Kb A ed 98 be PRES SOe a 9

South Dakota v. Bourland, 508 U.S. 67° LEO sis@is 6% 14

Strate v. A-1 Contractors, 117 S. Ct. 1404 (1997) .. passim

Thomas v. Gay, 169 U.S. 264 (RRO OOS Gre oe cen 15

Williams v. Lee, 358 U.S. 217 Lk oe TRAC ae CS IML ieee” 15

FEDERAL MATERIALS

Code of Federal Regulations

Ot A. BASE CRN sc ok ee ee 2.5

Federal Rules of Civil Procedure

PU SOG) ss 6 Sig Choa ea oe ee ee li

cp dR nce cg TERETE EPO POE cop mine ale trae etree. Fo ii

Session Laws

Act O8§ bier, 13; 3966, 12 Sik OR ee 2

Act of Ape. 23, 1906, 35 Stat. MO i 2

rub. 1. No. 1004, 300 Stat. 36:...-..0 a 4

Pub. L. No. 100-581, 102 Stat. 2940................. 4

TABLE OF AUTHORITIES — Continued

Page

United States Code

RRs ZO Be WEN 6 SCRE Se bed ek enerele chee ee l

Wit. SS BB FF55-1SS7 FIG G rhs ee se iviaeeee

ROR, BS DB GRO n on. bs Se eicee datucneee eke ankeeean 20

ERR, Ge BS tk 6 Cala hha ee Peel Yee

TEE, SO DSCs ib ak evekeeuvds occa eceereas 18, 19

Tet. Se BD BSR TOE ss Sic advlidtclevessc ects meiemesss bee 18

Fee: SD Be SOROS ic ik aes heise Pei ee ek va eee 18

Fat. SS SIRI voce ake sale Wee ees ee eee 18

Bie. SS DS AS a io he ORR eee ee 9

BBR. SES TSBUAED, one viswonh CUCEIMG Bea eee 3

Fe SSB SORE s oo eave desk el yaaeaeeead cis Oheeckaeeeas 3

Fit. 3S SM GeAGe 5 ok eck bee Mieke cba cero 18

Fat. BO Bh Be ik ih ea iene hea eee y Rae 4

Set: DO BD TATE isda kee tadastenanks tan eaeee 2, 4

Fit. BS BRST aks CAS eee eee eee ees eo

Tit.. 42 SB DOES nivca ch cee eee eee cia eceeniewe 20

MONTANA MATERIALS

Montana Code Annotated

G6 75-5-+101 to -2ES2 (IGST hs sic vee acs cee ane 3

SD FOS LAG s « s Sun eX pda a's Wake ee a eer nen 17

GR FSS SOL WO: SEF oa asdinw sd werestweceuaviseerne 17

Vii

TABLE OF AUTHORITIES - Continued

Page

ee POI We SOO oie es see eee cea) oe 17

Oe rE NO oe a tae Nt rhea 18

§ CPOE 3 is Gea ieee ta Case E ok ee

OTHER AUTHORITIES

Final Rule, Amendments to the Water Quality Stan-

dards Regulation That Pertain to Standards on

Indian Reservations, 56 Fed. Reg. 64,876 (1991)....., 5

Final Rule, Indian Tribes; Eligibility for Program

Authorization, 59 Fed. Reg. 64,339 (Dec. 14, 1994) ..... 4

Proposed Rule, Amendments to the Water Quality

Standards Regulation That Pertain to Standards on

Indian Reservations, 54 Fed. Reg. 39,098 (Sept. 22,

POMEL AC SET ohio eras Rn cae Ee ae 5

EPA Treatment of Tribes in The Same Manner as

States/Program Approval Matrix (March 1998) .... 20

L. Scott Gould, The Consent Paradigm: Tribal Sover-

eignty at the Millennium, 96 Colum. L. Rev. 809

5 as CY RPO En Cit MCE RUA Rion Cn aioe nen pO EL 14

PETITION FOR WRIT OF CERTIORARI

Petitioners State of Montana; Lake County, Montana;

City of Ronan, Montana; and Town of Hot Springs, Mon-

tana, hereby petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

137 F.3d 1135 (9th Cir. 1998) and is reproduced in the

Appendix commencing at Pet. la. The opinion of the

District Court is reported at 941 F. Supp. 945 (D. Mont.

1996) and is reproduced commencing at Pet. 16a. The

decision of respondent United States Environmental Pro-

tection Agency at issue herein is not reported and is

reproduced commencing at Pet. 50a.

JURISDICTION

The judgment of the court of appeals was entered on

March 3, 1998. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The petition presents a question of federal common

law which arises in the context of the following statutory

and regulatory provisions:

1. Clean Water Act of 1972, as amended, 33

U.S.C. §§ 1251-1387 (1997); 33 U.S.C. §§ 1313,

1370, and 1377 are reproduced at Pet. 118a,

129a, and 130a.

2. Water Quality Standards: Requirements for

Indian Tribes to Administer a Water Quality

Standards Program, 40 C.F.R. § 131.8 (1997),

reproduced at Pet. 113a.

STATEMENT

While this case arises on the Flathead Indian Reser-

vation (“Reservation”) in Montana, it more generally calls

upon this Court to again address the consequences of the

legal and historical events which have shaped modern

Indian country. Congress created the Reservation when it

ratified the 1855 Treaty of Hellgate. Act of Mar. 13, 1859,

12 Stat. 975. As it had with many other Indian reserva-

tions, Congress later “authorized allotments in severalty

of Flathead Reservation land to members of the Tribes.”

Act of Apr. 23, 1904, 33 Stat. 302; see generally Confederated

Salish and Kootenai Tribes v. United States, 437 F.2d 458,

460-62 (Ct. Cl. 1971). After reservation lands had been

allotted to tribal members, Congress authorized nonmem-

bers to enter the Reservation and acquire fee title to land

under the “general provisions of the homesteed, mineral,

and town-site laws of the United States.” 33 Stat. 303.

As a result of these policies and other historical

trends, non-Indians now comprise over three-fourths of

the Reservation’s population. A.R., Vol. I, tab. 4 at 13-14;

see also 1990 Census of Population; General Population

Characteristics; Montana (Table 13). Similarly, of the 1.2

million acres of land within the Original Reservation,

slightly more than 530,000 acres are now held in fee by

persons who are not tribal members or by state and state

governmental entities, including Petitioners. A.R., Vol. I,

tab. 4 at 2; see also Moe v. Confederated Salish and Kootenai

Tribes, 425 U.S. 463, 466 (1976).

Petitioners conduct governmental activities within

the Flathead Indian Reservation that are subject to regula-

tion under the Clean Water Act of 1972, 33 U.S.C.

§§ 1251-1387 (1997), and its state law counterpart, the

Montana Water Quality Act. Mont. Code Ann. §§ 75-5-101

to -1122 (1997). The State of Montana operates a research

facility that discharges treated effluent into Flathead

Lake, while Lake County, Polson, and Ronan operate

municipal wastewater treatment plants that discharge

treated effluent into several other streams or bodies of

water within the Reservation. Pet. 19a-20a. Lawful opera-

tion of each facility requires issuance of a National Pollu-

tion Discharge Elimination System (“NPDES”) permit

under 33 U.S.C. § 1342, along with a similar permit under

Montana law. Mont. Code Ann. § 75-5-605(2). Prior to this

controversy respondent United States Environmental Pro-

tection Agency (“EPA”) did not require Petitioners to

secure an NPDES permit but instead deemed state-issued

permits as constituting compliance with the Act.

A condition precedent to issuance of a NPDES permit

is certification from the involved State that the proposed

discharge complies with the requirements of the Clean

Water Act and, if more stringent than federal standards,

the requirements of state law. 33 U.S.C. § 1341(a)(1). The

issue here is whether EPA properly determined that

respondent Confederated Salish and Kootenai Tribes have

inherent regulatory authority over Petitioners’ activities

related to the discharges and thus may be deemed a

“State,” thereby requiring certification by the Tribes.

I. STATUTORY AND REGULATORY BACKGROUND

In 1987 Congress amended the Clean Water Act to

allow Indian tribes to be “treated as a State” (“TAS”)? for

various purposes. Pub. L. No. 100-4, tit. V, § 506, 101 Stat.

76, amended Pub. L. No. 100-581, tit. II, § 207, 102 Stat.

2940, codified at 33 U.S.C. § 1377. That amendment, § 518

of the Act (33 U.S.C. § 1377) (Pet. 132a), provides in

relevant part:

The Administrator is authorized to treat an

Indian tribe as a State . . . to the degree neces-

sary to carry out the objectives of this section,

but only if -

(2) the functions to be exercised by the

Indian tribe pertain to the management and pro-

tection of water resources which are held by an

Indian tribe, held by the United States in trust

for Indians, held by a member of an Indian tribe

if such property interest is subject to a trust

2 EPA has discontinued the use of the terms “treated as a

State” or “treatment as a State” (Final Rule, Indian Tribes;

Eligibility for Program Authorization, 59 Fed. Reg. 64,339 (Dec. 14,

1994)), opting instead to use the term “treatment in the same

manner as a State.” Id. at 64,343 (amending 40 C.F.R. § 124.2).

The abbreviation “TAS” used in the text is inclusive of all of the

various labels used to describe instances in which tribes are

authorized under the Act to be deemed a State.

a lt Ae

ea ee ee en Se en ee ee

restriction on alienation, or otherwise within the

borders of an Indian reservation.

33 U.S.C. § 1377(e)(2). In December 1991, EPA issued final

regulations concerning the standards for determining

tribal requests for authority to promulgate water quality

standards pursuant to § 303 of the Act, 33 U.S.C. § 1313.

Final Rule, Amendments to the Water Quality Standards

Regulation That Pertain to Standards on Indian Reservations,

56 Fed. Reg. 64,876, 64,877-880 (1991), codified at 40 C.E.R.

§ 131.8 (1997) (“Final Rule”) (Pet. 92a, 113a). The Final

Rule contained a preamble addressing several of the

issues that had been raised with respect to the proposed

water quality standards rule (Proposed Rule, Amendments

to the Water Quality Standards Regulation That Pertain to

Standards on Indian Reservations, 54 Fed. Reg. 39,098 (Sept.

22, 1989)) including the question of how § 518 was to be

interpreted and applied consistent with federal common

law defining the inherent regulatory authority of Indian

tribes. Pet. 96a-106a.

EPA first rejected the argument that § 518 constituted

an express delegation of federal power to Indian tribes,

concluding that “Congress only manifested an intent to

authorize EPA to treat Indians as States over any activ-

ities within the scope of Tribal authority in light of the

relevant principles of Federal Indian law.” Pet. 111a. This

approach, EPA explained, “will best effectuate the overall

purposes of the [Act]”. Id. According to EPA the scope of

tribal authority for purposes of § 518 was to be deter-

mined by reference to federal common law principles,

most specifically those articulated in Montana v. United

States, 450 U.S. 544 (1981), and later decisions of this

Court addressing the same. Pet. 111a.

EPA then went on to formulate an “interim operating

rule” that recognizes inherent tribal authority over non-

members on fee lands in virtually all instances. Pet. 101.

The operating rule is based wholly on the EPA’s inter-

pretation of the second exception to Montana’s bedrock

“general rule that, absent a different Congressional direc-

tion, Indian tribes lack civil authority over the conduct of

nonmembers on non-Indian land within a reservation.”

Strate v. A-1 Contractors, 117 S. Ct. 1404, 1409 (1997)

(emphasis supplied). In articulating the second exception,

the Montana Court explained that

[a] tribe may also retain inherent power to

exercise civil authority over the conduct of non-

Indians on fee lands within its reservation when

that conduct threatens or has some direct effect

on the political integrity, the economic security,

or the health or welfare of the tribe.

450 U.S. at 566. In explaining how it interpreted that

exception, EPA first noted that in Brendale v. Confederated

Tribes and Bands of Yakima Indian Nation, 492 U.S. 408

(1989), “several justices argued that for a tribe to have a

‘protectible interest’ in an activity [for purposes of the

second Montana exception], the activity’s effect should be

‘demonstrably serious.’ ” Pet. 100a. Accordingly, EPA

concluded that the “prudent” approach would be to

“require a showing that the potential impacts of regu-

lated activities on the tribe are serious and substantial.”

Id.

EPA’s ensuing application of its “serious and sub-

stantial” standard was premised on its conclusion that

“there are substantial factual and legal reasons tou assume

that Tribes ordinarily have the legal authority to regulate

;

water quality within a reservation.” Pet. 99a-100a

(emphasis supplied). As EPA then explained, there were

two such “reasons.” The first is that impacts to water

quality cannot be regulated efficiently along political

boundaries. Pet. 102a-103a. The second is that the Clean

Water Act itself constitutes a “legislative determination

that activities which affect surface water and critical

water quality habitat may have serious and substantial

impacts.” Pet. 102a.

In light of these “generalized findings,” EPA formu-

lated an operating rule which required applicant tribes to

make

a relatively simple showing of facts that there

are waters within the reservation used by the

Tribe or tribal members, (and thus that the Tribe

or tribal members could be subject to exposure

to pollutants present in, or introduced into,

those waters) and that the waters and critical

habitat are subject to protection under the Clean

Water Act. The Tribe must also explicitly assert

that impairment of such waters by the activities

of non-Indians, would have a serious and sub-

stantial effect on the health and welfare of the

Tribe.

Pet. 105a. In remarkable understatement, EPA explained

that “tribes will usually be able to meet the . . . operating

rule.” Pet. 101a. Once an applicant tribe has met this

minimal pleading requirement

EPA will, in light of the facts presented by the

tribe and the generalized statutory and factual

findings regarding the importance of reserva-

tion water quality . . . presume that there has

been an adequate showing of tribal jurisdiction

of fee lands, unless an appropriate govern-

mental entity (e.g., an adjacent Tribe or State)

demonstrates a lack of jurisdiction on the part of

the Tribe.

Pet. 106a (emphasis supplied). EPA did not explain what

showing is required to demonstrate a lack of tribal juris-

diction. The practical effect, however, of EPA’s operating

rule is to establish a presumption of inherent tribal regu-

latory authority over nonmember activity on non-Indian

lands. See Pet. at 8a.

Il. PROCEEDINGS BELOW

A. Administrative Proceedings

In April 1992 the Tribes applied for TAS status under

§ 303 of the Act (33 U.S.C. § 1313) with respect to all

surface waters within the Flathead Reservation. A.R., Vol.

I, tab 3. Petitioners filed comments in accordance with 40

C.F.R. § 131.8(c)(3). A.R., Vol. Il, tab 21. In those com-

ments Petitioners opposed TAS status to the extent it

would recognize the existence of the Tribes’ inherent

authority over their activities on fee lands. Id.5

In February 1995 EPA approved the Tribes’ applica-

tion to administer a water quality standards program

applicable to all lands and surface waters within the

Reservation. Pet. 50a, 62a-68a. As a consequence of EPA’s

decision, the Tribes were entitled to submit, and thereaf-

ter did submit successfully, their water quality standards

3 Petitioners have not contested the EPA decision insofar as

it accords the Tribes TAS status with respect to tribal, trust, and

member-owned lands within the Reservation.

to EPA for approval under § 303 of the Act, and are

entitled to exercise the certification authority granted

under § 401 of the Act, 33 U.S.C. § 1341. Pet. 50a; see

generally PUD No. 1 v. Washington Dep’t of Ecology, 511

U.S. 700, 704-08 (1994).

Applying its Final Rule’s analysis, EPA concluded

that the Tribes possess inherent authority over nonmem-

bers on fee lands throughout the Reservation for the

purposes of setting water quality standards. Pet. 68a. In

so holding, EPA declined to hold an evidentiary hearing

relative to the Tribes’ factual submissions. Pet. 63a-64a. In

support of its “generalized finding” that nonmember

activity can affect the Tribes’ interests, EPA also cited a

list of specific instances of alleged nonmember pollution

of reservation waters (Pet. 70a-91a) which had been

assembled after Petitioners had submitted their response.

A.R., Vol. II at tabs 25, 30, 31.

B. Judicial Review of EPA’s Decision

In May 1995, Petitioners sought judicial review of

EPA’s decision. Pet. 19a. The District Court issued its

opinion and judgment in March 1996 upholding EPA’s

determination that the Tribes possessed inherent author-

ity over nonconsenting nonmembers on fee lands. Pet.

l6a. The District Court largely adopted EPA’s Final Rule

analysis. On appeal, the Ninth Circuit affirmed. Pet. 1a.

In so doing it first rejected EPA’s suggestion that its

interpretation of federal Indian law was entitled to defer-

ence. Pet. at lla. Explaining that this Court’s decisions

had left “some confusion as to what the correct standard

should be” (Pet. at 10a), the Court of Appeals concluded

that “EPA has [not] committed any material mistakes of

law in its delineation of the scope of inherent tribal

authority” (Pet. 11a) and that its analysis “appear[ed] to

adumbrate the Supreme Court’s holding in Strate

... [which] reaffirms the validity of Montana” (Pet. 12a).

Turning to EPA’s application of the second Montana

exception, the Court of Appeals cited Colville Confederated

Tribes v. Walton, 647 F.2d 42, 52 (9th Cir.), cert. denied, 454

U.S. 1092 (1981), for two general propositions: (1) that

“threats to water rights may invoke inherent tribal

authority over non-Indians”; and (2) that water is a “uni-

tary resource” which cannot be regulated along political

boundaries. Pet. 12a. The court below distinguished

Strate on the ground that “the conduct of a user of a small

stretch of highway has no potential to affect the health

and welfare of a tribe in any way approaching the threat

inherent in impairment of the quality of the principal

water source.” Pet. 12a-13a.

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS’ APPLICATION OF THE

SECOND MONTANA EXCEPTION CANNOT BE

RECONCILED WITH STRATE AND PRESENTS AN

IMPORTANT FEDERAL QUESTION CONCERN-

ING THE SCOPE OF THAT EXCEPTION.

In Strate this Court observed that, “[rjead in isola-

tion, the Montana rule’s second exception can be misper-

ceived.” 117 U.S. at 1416. The Court of Appeals’ decision,

like EPA’s decision that it affirms, exemplifies just such a

misperception by transforming the second exception into

a virtually irrebuttable presumption in favor of tribal

authority where water quality regulation is involved.

This case thus presents the Court with an opportunity to

further clarify in an exceedingly important context the

proper application of the Montana rule and its second

exception.

The Court of Appeals’ errors are twofold. The first is

its view that, by reaffirming Montana's approach to deter-

mining the reach of inherent tribal authority over non-

members with respect to conduct on nontribal land, Strate

also sanctioned the proposition that the second exception

requires little more than a generalized, and plainly quite

subjective, “tribal interest” inquiry to rebut the presump-

tion against the existence of such authority. The second

lies in conducting that inquiry without reference to how

the involved tribal interests can otherwise be protected

from nonmember activities under extant state and federal

law. Central to this conclusion is a proper understanding

of this Court’s reasoning both in Strate and in Brendale.

Brendale presented the question whether the Confed-

erated Tribes and Bands of the Yakima Nation had the

authority to impose their zoning ordinance as to activities

on fee land owned by tribal nonmembers. One of the

involved parcels was in an area of the reservation (the

“closed area”) that was almost wholly tribally-owned and

that traditionally had been closed to non-Indian entry.

492 U.S. at 415. The other parcel was in an area of the

reservation (the “open area”) where, by virtue of allot-

ment-era policies, access was not restricted and over half

of the land was owned by tribal nonmembers. Id. at

415-16. A splintered Court upheld the Tribes’ power to

enforce their zoning ordinance with respect to the closed

area (id. at 444) but denied the Tribes’ power to do so

with respect to the open area. Id. at 432.

Justice White, writing for himself and three members

of the Court, flatly rejected the notion that every “direct

effect” on a protected tribal interest may form a basis for

the exercise of inherent tribal authority over nonmembers

under the second Montana exception. He explained that

the court of appeals had incorrectly “transformed this

indication that there may be other cases in which a tribe

has an interest in activities of nonmembers on fee land

into a rule describing every case in which a tribe has such

an interest” (id. at 429), and had otherwise improperly

“equated an Indian tribe’s retained sovereignty with a

local government’s police power, which is contrary to

Montana itself.” Id.; see also id. at n.11 (same).

Instead, “[t]he governing principle is that the tribe

has no authority itself, by way of tribal ordinance or

actions in the tribal courts, to regulate the use of fee

land” (id. at 430), and that

Montana suggests that in the special circum-

stance of checkerboard ownership of lands

within a reservation, the tribe has an interest

under federal law, defined in terms of the

impact of the challenged uses on the political

integrity, economic security, or the health or

welfare of the tribe. But . . . that interest does

not entitle the tribe to complain or obtain relief

against every use of fee land that has some

adverse effect on the tribe. The impact must be

demonstrably serious and must imperil the

political integrity, the economic security, or the

health and welfare of the tribe.

TRS en

Id. at 430-31. Justice White’s understanding of how the

second exception was to be applied was taken directly

from Montana itself. There, in holding that the tribe

lacked inherent authority to regulate nonmember hunting

and fishing on fee lands, the Court explained that

the complaint did not allege that the State has

abdicated or abused its responsibility for pro-

tecting and managing wildlife, has established

its season, bag or creel limits in such a way as to

impair the [tribe’s] treaty rights to fish or hunt,

or has imposed less stringent hunting and fish-

ing regulations within the reservation than in

other parts of the State.

Montana, 450 U.S. at 566 n.16. Justice White’s Brendale

opinion thus clarified what was already established in

Montana: that the second exception may serve as a basis

for direct tribal authority over nonconsenting nonmem-

bers in few situations; and that a tribe’s recourse nor-

mally lies in pursuing available state and federal

remedies to mitigate the alleged infringement on tribal

interests. Accordingly, the Tribe in Brendale should have

first presented its claim in proceedings before the local

government zoning board and, if adequate relief was not

forthcoming, then in a federal cause of action designed to

protect the interests defined by the exception. 492 U.S. at

430; see also id. at 460 (Blackmun, J., concurring in part &

dissenting in part) (criticizing Justice White’s “new-

fangled federal nuisance-type cause of action”).

Justice Stevens, joined by Justice O’Connor, focused

on the tribes’ original power to exclude nonmembers

from tribal territory - “a power unknown to any other

sovereignty in this Nation” (492 U.S. at 433) —- and drew a

distinction between the closed and open areas of the

reservation. With respect to the closed area, he reasoned

that

just as Congress could not possibly have

intended in enacting the Dawes Act that tribes

would maintain the power to exclude bona fide

purchasers of reservation land from that prop-

erty, it could not have intended that tribes

would lose control over the character of their

reservations upon the sale of a few, relatively

small, parcels of land.

Id. at 441. With respect to the open area, Justice Stevens

concurred with Justice White that “the tribe lacks author-

ity to regulate the use of [the] property,” explaining that

“so long as [it] is not used in a manner that is preempted

by federal law, the Tribe has no special claim for relief.”

Id. at 445.

Most critical here is the fact that in Brendale six mem-

bers of this Court agreed that state and federal remedies,

not direct tribal regulation predicated on inherent author-

ity, were to be utilized to protect tribal interests in reser-

vation areas where allotment-era or other acts operated to

eliminate the territorial exclusivity that is a necessary

condition to the effective exercise of terfitorial sovereign

power. Accord South Dakota v. Bourland, 508 U.S. 679

(1993); see generally L. Scott Gould, The Consent Paradigm:

Tribal Sovereignty at the Millennium, 96 Colum. L. Rev. 809,

894-902 (1996).

The principles embodied in Strate flow directly from

the Court’s earlier dialogue in Brendale. Strate’s primary

significance here lies in the Court’s unanimous reaffirma-

tion of Montana's presumption against tribal authority

over nonmembers (117 S. Ct. at 1409-10) and in its further

explication of the purpose and scope of the second excep-

tion. In discussing the second Montana exception, the

Court initially observed: “Undoubtedly, those who drive

carelessly on a public highway running through a reser-

vation endanger all in the vicinity, and surely jeopardize

the safety of tribal members|,] [b]ut if Montana’s second

exception requires no more, the exception would severely

shrink the rule.” Id. at 1415.

The Court then explained that the four cases* cited in

Montana in support of the second exception “indicate[d]

the character of the tribal interest the Court envisioned.”

117 S. Ct. at 1415. Each of those cases focused on “the

question whether a State’s (or Territory's) exercise of

authority would trench unduly on tribal self-govern-

ment.” Id. The second exception thus was intended as a

shield to be used where “needed to preserve ‘the right of

reservation Indians to make their own laws and be ruled

by them’ ” (id. at 1416 (quoting Williams, 358 U.S. at 220));

and not as a sword to project tribal coercive powers over

nonmembers whenever some “tribal interest” can be

identified.

Strate clarifies that the presumptive absence of inher-

ent tribal authority as to nonmember activity on nontribal

lands within a reservation is not rebutted under the sec-

ond Montana exception except when such authority is

essential to tribal self-governance; i.e., when application

4 Fisher v, District Court, 424 U.S. 382 (1976) (per curiam);

Williams v. Lee, 358 U.S. 217 (1959); Montana Catholic Missions v.

Missoula County, 200 U.S. 118 (1906); Thomas v. Gay, 169 U.S. 264

(1898).

of tribal law is essential to preserve a tribe’s inherent

power “[to punish tribal offenders], to determine tribal

membership, to regulate domestic relations among mem-

bers, and to prescribe rules of inheritance for members.”

Id. at 1416 (quoting Montana, 450 U.S. at 564). The Court’s

citation to infringement test in Williams v. Lee is accord-

ingly critical, because it stands for the principle that the

exercise of inherent tribal authority over nonmember fee

land activity is limited to situations where state law has

been preempted by virtue of interference with tribal self-

government. Absent preemption, the “optional use” of

tribal law is not essential to protecting the tribe’s ability

to govern itself or to order its internal affairs. 117 S. Ct. at

1416.

The Court of Appeals’ interpretation of Montana's

second exception “would severely shrink the [general]

rule” by inserting in its stead a standardless approach for

determining inherent tribal authority. Boiled down to its

essentials, the court’s conclusion that tribal authority

exists here is grounded in a determination that the pro-

tection of water quality is qualitatively different from and

more important to Indian tribes than highway safety

(Strate), land use (Brendale), or fish and wildlife regula-

tion (Montana). Clearly, the notion that “water is more

important than land” cannot serve as a meaningful nor-

mative standard. As this case reveals, such an approach is

constrained by little more than the decision-maker’s pol-

icy preferences. More important, however, is that the

failure of the Court of Appeals to consider extant state

and federal remedies cannot be reconciled with Strate.

€

’

There has been no reasoned claim in this case - and

certainly no finding by EPA or any court — that Montana’s

water quality laws have been preempted with respect to

nonmember activities on fee lands on the Reservation.

Nor could there be one. Just as Congress did not delegate

federal authority to tribes in adopting § 518, so too it did

not preempt state law in the 1987 amendments to the Act.

A different conclusion would be incompatible with 33

U.S.C. § 1370 (Pet. 130a), which specifically disclaims any

intent “[e]xcept as expressly provided” to “impair[] or in

any manner affect[] any right or jurisdiction of the States

with respect to the water . . . of such States.” See Pet. at

65a (“EPA[’s] regulations . . . do not construe the

CWA ... as preempting State regulation”); cf. Narragan-

sett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908, 922

(Ist Cir. 1996) (disapproving district court’s conclusion

that grant of TAS status to tribe evidenced Federal Gov-

ernment’s intent to establish “Indian country” or other-

wise preempt state law).

Questions of preemption aside, there is also no sup-

port in the record for an argument that Montana’s laws

are inadequate to protect the Tribes’ treaty rights or more

general interest in clean water. To the extent those inter-

ests may be affected, the State has the authority to protect

them by requiring Petitioners to comply with state-estab-

lished water quality standards (Mont. Code Ann.

§ 75-5-103(23) (defining “person” to include State or

political subdivision); id. §§ 75-5-301 to -317 (classifica-

tion of and standards for surface waters) and to secure

and comply with state-issued discharge permits (id.

§§ 75-5-401 to -405 (discharge permits). See also id.

§§ 75-5-601 to -641 (enforcement, appeals and penalties).

Finally, even assuming arguendo state law is preempted

or in some way inadequate, the Court of Appeals’ deci-

sion additionally fails to explain why direct federal pro-

mulgation of water quality standards (33 U.S.C.

§ 1313(c)(4) (Pet. 122a)), coupled with federal issuance of

discharge permits (33 U.S.C. § 1342(a); see generally

Arkansas v. Oklahoma, 503 U.S. 91, 103 (1991)) and, if

necessary, federal enforcement against Petitioners for any

standard or permit violation (33 U.S.C. § 1319(b), (e) and

(g)), would be inadequate to protect the Tribes’ interests.

This case involves the first instance of a federal

appeals court’s recognizing the existence of inherent

tribal authority over the governmental activities of a State

or its political subdivisions. This absence of historical

precedent for the Ninth Circuit’s ruling is of obvious

significance in determining its correctness (see, e.g.,

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 197-206

(1978); Duro v. Reina, 495 U.S. 676, 690-93 (1990)), but it

additionally raises the question whether application of

tribal jurisdiction over the States through the second

Montana exception is permissible in any instance.

It is, as a threshold matter, extraordinary to conclude

that a sovereign State and its counties or towns are sub-

ject to the coercive powers of a tribe whose inherent

authority is unconstrained by the careful delineation of

federal and state powers in the Constitution. Indeed, to

so conclude would be to accept that tribes, as “domestic

dependent nations” (Cherokee Nation v. Georgia, 30 U.S. (5

Pet.) 1, 16 (1831)) (emphasis supplied) possess compara-

ble — indeed perhaps greater — powers with respect to the

States than their guardian the Federal Government itself.

Cf. Kiowa Tribe of Okla. v. Manufacturing Tech., Inc., No.

96-1037, 1998 WL 260001, at *6 (U.S. May 26, 1998)

(Stevens, J., dissenting) (“Why should an Indian tribe

enjoy broader immunity than the States, the Federal Gov-

ernment, and foreign nations?”) This proposition cannot

be squared with a constitutional plan under which the

Federal Government’s own powers derive from the States’

agreement to divest themselves of authority for purposes

of forming a national government. See, e.g., New York v.

Linited States, 505 U.S. 144, 155-66 (1992) (“[t]he Constitu-

tion has never been understood to confer upon Congress

the ability to require States to govern according to Con-

gress’ instruction”); cf. Blatchford v. Native Village of

Noatak, 501 U.S. 775, 781 (1991) (rejecting notion that “the

States had waived their [Eleventh Amendment] immunity

against Indian tribes when they adopted the Constitu-

tion”); Kiowa Tribe, 1998 WL 260001, at *3 (same).

These federalism concerns counsel that the exercise

of inherent tribal authority over the governmental activ-

ities of state and local governments can be justified, if at

all, only in quite exceptional circumstances. Cf. New Mex-

ico Vv. Mescalero Apache Tribe, 462 U.S. 324, 331-32 (1983)

(“in exceptional circumstances a State may assert jurisdic-

tion over the on-reservation activities of tribal mem-

bers”). Such circumstances are plainly absent here since

the Tribes’ interest with respect to water quality is pro-

tected under state amd federal law.

Il. THE COURT OF APPEALS’ DECISION HAS

BROAD SIGNIFICANCE NOT ONLY WITH

RESPECT TO FUTURE APPLICATION OF THE

ACT’S TAS PROVISION BUT ALSO IN OTHER

SITUATIONS WHERE THE SECOND MONTANA

EXCEPTION IS RELIED UPON AS A BASIS FOR

THE EXERCISE OF INHERENT TRIBAL

AUTHORITY OVER NONMEMBERS.

The numerical and geographic magnitude of the TAS

issue is illustrated by the fact that as of March 1998, over

210 tribes nationwide have received or are in the process

of seeking TAS status under the Act or the counterpart

TAS provision of the Safe Drinking Water Act, 42 U.S.C.

§ 300j-11. EPA Treatment of Tribes in The Same Manner as

States/Program Approval Matrix (March 1998) (Pet. 135a).5

Although the majority of the tribal submissions involve

grant requests under § 106 of the Act, 33 U.S.C. § 1256, to

assist in developing pollution control programs, the sheer

number of tribes currently in the planning stages reflect

the need to determine whether EPA’s application of the

second Montana exception is correct.

With respect to the specific parties to this proceeding,

moreover, it is clear that this decision will be viewed by

EPA as preclusive in all subsequent TAS applications by

the Tribes under other environmental programs involving

water. This point is demonstrated by the fact that, while

5 Petitioners’ counsel received a copy of this document

from the American Indian Environmental Office, U.S.

Environmental Protection Agency, 401 M Street SW, Washington

D.C., 20460. It is submitted for the Court’s consideration

pursuant to Sup. Ct. Rule 14.1.{i)(vi).

ve eer

EPA attempted to limit its decision to this specific situa-

tion (Pet. 50a, 60a), it had explained several months ear-

lier that

once [EPA] makes a jurisdictional determination

in response to a tribal application regarding any

EPA program, it will ordinarily make the same

determination for other programs unless the

subsequent application raises different legal

issues.

Final Rule, 59 Fed. Reg. at 64,340. In a similar manner, the

Ninth Circuit’s decision may also be viewed as the predi-

cate for independent tribal enforcement of their water

quality standards against Petitioners and others similarly

situated. See Pet. at 60a (noting that “the Tribes may, in an

independent action, enforce tribal water quality stan-

dards”). Affirmance of EPA’s TAS determination thus

may have far-reaching effects for both Petitioners and

other nonmembers on the Reservation.

It must be emphasized finally that the Court of

Appeals applied general principles of federal Indian law

to reach the holding below. Consequently, while this dis-

pute was precipitated by a TAS application under the

Clean Water Act, the analysis employed by the court is

not limited to that context. At a very minimum the stan-

dardless “tribal interest” approach sanctioned by the

Ninth Circuit will allow EPA easily to extend “gener-

alized findings” beyond the water context into any other

subject matter encompassed by a federal environmental

program. A more likely result, however, is that the court's

standardless approach will be employed more broadly in

the Ninth Circuit and perhaps other circuits to expand

the reach of inherent tribal authority far outside the

highly limited purpose assigned the second Montana

exception in Strate.

Timely guidance from this Court on an issue of criti-

cal importance to the formulation of tribal regulatory

programs is therefore warranted. It makes little sense to

await further case law development when the Court of

Appeals’ decision is so obviously suspect. No less impor-

tant, delaying resolution of the issue here does little

justice to EPA, to those Indian tribes that desire to estab-

lish regulatory programs, or to the public and private

parties who will be obligated to comply with the tribal

programs, if the jurisdictional basis of those programs is

removed a number of years later. Early and clear guid-

ance from this Court on this important question will

assist in preserving public and private resources.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

JosepH P. MazuREK

Attorney General of Montana

Cray R. SMITH

Solicitor

Harvey R. Harris

Assistant Attorney General

Counsel of Record

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

CarTER G. PHILLIPS

SipteY & AUSTIN

1722 Eye Street, N.W.

Washington, DC 20006

; (202) 736-8270

May 1998

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF MONTANA; LAKE County,

Montana, a political subdivision

of the State of Montana; Crry oF

RONAN, MONTANA, a municipal

corporation; Town or Hor Sprinas,

MONTANA, a municipal

corporation,

Plaintiffs,

and

FLATHEAD Joint BOARD OF CONTROL,

Mission IRRIGATION District, JocKo

VALLEY IRRIGATION District,

FLATHEAD IRRIGATION District, local

governments; Ross Mipptemist,

WayNeé MAUGHAN, WILLIAM SLACK

and GLENN Murpny,

Plaintiffs-Intervenors-Appellants,

Vv.

Unrrep States ENVIRONMENTAL

Prorection AGENCY, an agency of

the United States; Caro. M.

Browner, Administrator of the

United States Environmental

Protection Agency; and the

CONFEDERATED SALISH and

KOOTENAI TRIBES,

Defendants-Appellees.

)

No. 96-35505

D.C. No.

CV-95-00056-CCL

OPINION

StaTE OF MONTANA; LAKE COUNTY,

Montana; City oF RONAN,

MONTANA, a municipal

corporation; Town or Hor

SprRINGs, MONTANA, a municipal

corporation,

Plaintiffs-Appellants,

No. 96-35508

D.C. No.

Unrrep States ENVIRONMENTAL CV-95-00056-CCL

PROTECTION AGENCY, an agency of

the United States; Caror M.

BrowNner, Administrator of the

United States EPA; CONFEDERATED

SALISH and KoOoreNAI TRIBES OF

THE FLATHEAD RESERVATION,

Defendants-Appellees.

Appeals from the United States District Court

for the District of Montana

Charles C. Lovell, District Judge, Presiding

Argued and Submitted

September 8, 1997 — Seattle, Washington

Filed March 3, 1998

Before: Mary M. Schroeder and Robert R. Beezer, Circuit

Judges and William W Schwarzer,* District Judge.

Opinion by Judge Schroeder

* Honorable William W. Schwarzer, Senior United States

District Judge for the Northern District of California, sitting by

designation

COUNSEL

Harley Harris, Assistant Attorney General, Helena, Montana,

for plaintiffs-appellants.

Kevin Washburn, Department of Justice, Washington, D.C.,

for the defendants-appellees.

Daniel Decker, Marion Yoder, and John Carter, Tribal Legal

Department, Confederated Salish and Kootenai Tribes of the

Flathead Nation, Pablo, Montana, for tribal-appellees.

Arthur Lazarus, Jr., Sonosky, Chambers, Sachse & Enderson,

Washington, D.C., amicus curiae for Assiniboine and Sioux

Tribes of Fort Peck Reservation, Montana.

Jon Metropoulos, Helena, Montana, for the plaintiffs-inter-

venors-appellants.

Jeanne S. Whiteing, Whiteing & Thompson, Boulder, Colo-

rado, amicus curiae for Blackfeet Tribe.

Sam W. Maynes, Maynes, Bradford, Shipps & Sheftel,

Durango, Colorado, amicus curiae for Southern Ute Indian

Tribe.

Hans Walker, Jr., Hobbs, Straus, Dean & Walker, Washington,

D.C., amicus curiae for Three Affiliated Tribes of Fort

Berthold Reservation, North Dakota.

Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank,

Montana, amicus curiae for Montana Association of Coun-

ties.

Thomas L. Dosch and John S. Greene, Assistant Attorneys

General for the State of Wisconsin as amici curiae for appel-

lants.

Jeffery R. Cutter, Lyon, Weigand & Gustafson, Yakima, Wash-

ington, amicus curiae for Yakima Reservation Irrigation Dis-

trict.

OPINION

SCHROEDER, Circuit Judge:

This case is a facial challenge to regulations the Environ-

mental Protection Agency (EPA) promulgated pursuant to

§ 518(e) of the Clean Water Act, 33 U.S.C. § 1377 (Supp.1997).

That section authorizes EPA to permit Indian tribes “to be

treated as a state” (TAS) for purposes of promulgating water

quality standards (WQS) pursuant to § 303 of the Act. 33

U.S.C. § 1313 (1986). The plaintiffs-appellants, collectively

referred to as “Montana,” include state and municipal enti-

ties who own fee interests in land located within the bound-

aries of the Flathead Indian Reservation. The Reservation is

occupied by the Confederated Salish and Kootenai Tribes.

The Tribes, along with EPA officials, are the defendants-

appellees.

Montana filed this action attacking EPA’s decision to

grant TAS status to the Tribes to promulgate WQS that apply

to all sources of pollutant emissions within boundaries of the

Reservation, regardless of whether the sources are located on

land owned by members or non-members of the Tribe. Mon-

tana maintained that the regulations permit tribes to exercise

authority over non-members that is broader than the inher-

ent tribal powers recognized as necessary to self-governance.

See Brendale v. Confederated Tribes and Bands of the Yakima

Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343

(1989); Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245,

67 L.Ed.2d 493 (1981).

In addition, Flathead Irrigation District and related enti-

ties (“the Intervenors”) have sought to intervene as of right

in the action although their uses of the land are not sources

of emissions regulated by the Clean Water Act.

The district court granted summary judgment to the

defendants, and denied intervention by the Intervenors

because they lacked any discernible interest in the subject

matter of the litigation as required by Rule 24 of the Federal

Rules of Civil Procedure. Montana and the Intervenors have

each filed a separate appeal. We affirm in both.

eS See ae

PES iP le Oe me neti h wet Wien soe oy

BACKGROUND

The Clean Water Act

The Clean Water Act (CWA) prohibits discharges

from a point source of any pollutant into waters unless

the emission discharge complies with the Act’s require-

ments. See 33 U.S.C. § 1311(a). For most discharges, such

compliance is achieved by obtaining and adhering to the

terms of a National Pollutant Discharge Elimination Sys-

tem (NPDES) permit. See 33 U.S.C. § 1342. NPDES per-

mits are issued by EPA or, in those jurisdictions in which

EPA has authorized a state agency to administer the

NPDES program, by a state agency subject to EPA review.

See 33 U.S.C. § 1342(b).

Under the NPDES program, each state must adopt

WQS for its waters. See 33 U.S.C. § 1313. These standards

are subject to review and approval by EPA. See 33 U.S.C.

§ 1313(a)-(c). Once WQS have been adopted, EPA will

issue an NPDES permit only if the relevant state certifies

that any discharges under the proposed permit will be

consistent with its WQS. See 33 U.S.C. § 1341(a).

In 1987, Congress added § 518(e) to the CWA which

authorized EPA to permit tribes “to be treated as a state”

(TAS) for purposes of promulgating WQS. 33 U.S.C.

§ 1377(e). The relevant language of the provision is set

forth in the margin.!

! The Administrator is authorized to treat an Indian tribe as

a State for purposes ef subchapter II. . . to the degree necessary

to carry out the objectives to this section, but only if -

EPA issued a final rule in 1991 implementing the

provision by setting forth the standards for processing

tribal requests for TAS status and concomitant authority

to institute WQS. See Environmental Protection Agency, 56

Fed.Reg. 64,876 (1991) (codified at 40 C.F.R. § 131.8(b)(3))

(hereinafter Final Rule). The Final Rule was promulgated

after notice and comment, during which Montana voiced

its objections to the rule as too broad. Conversely, some

tribal interests, represented in this case by amici briefs,

took the position that the authority was too narrow, and

that Congress had in effect delegated the power to the

tribes to promulgate WQS. EPA rejected both extremes

and promulgated the regulations here at issue:

1. The tribe must be federally recognized and

exercising governmental authority;

2. The tribe must have a governing body carry-

ing out “substantial governmental duties and

powers;”

(1) the Indian tribe has a governing body carrying

out substantial governmental duties and powers;

(2) the functions to be exercised by the Indian tribe

pertain to the management and protection of water

resources which are held by an Indian tribe, held by

the United States in trust for Indians, held by a

member of an Indian tribe if such property interest is

subject to a trust restriction on alienation, or

otherwise within the borders of an Indian reservation:

and

(3) the Indian tribe is reasonably expected to be

capable, in the Administrator’s judgment, of carrying

out the functions to be exercised in a manner

consistent with the terms and purposes of this

chapter and of all applicabie regulations.

ih iii sis Aehaseisn eli he

3. The water quality standards program which

the tribe seeks to administer must “pertain to

the management and protection of water

resources,” which are “within the borders of an

Indian reservation;”

4. The Indian tribe is reasonably expected to be

capable of carrying out the functions of an effec-

tive water quality standards program in a man-

ner consistent with the terms and purposes of

the Clean Water Act and regulations.

40 C.F.R. 131.8(a).

The third requirement, with which we are principally

concerned, is intended to reflect the scope of a tribe’s

“inherent power,” a concept developed by the Supreme

Court to define when tribes may engage in nonconsen-

sual regulation of activities of non-members. See Montana,

450 U.S. at 565-66, 101 S.Ct. at 1258; United States v.

Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085-86, 55

L.Ed.2d 303 (1978).

To demonstrate authority over the activities of non-

members on non-Indian fee lands, EPA requires a tribe to

show that the regulated activities affect “the political

integrity, the economic security, or the health or welfare

of the tribe.” Final Rule, 56 Fed.Reg. at 64,877 (quoting

Montana, 450 U.S. at 566, 101 S.Ct. at 1258). The potential

impacts of regulated activities on the tribe must be

“serious and substantial.” Id. at 64,878.

EPA believes that tribes will normally be able to

demonstrate that the impacts of regulated activities are

serious and substantial due to “generalized findings” on

the relationship between water quality and human health

and welfare. See id. Nonetheless, under the Final Rule

EPA will make a case-specific determination on the scope

of each tribal applicant’s authority. See id. Because EPA's

generalized findings will be incorporated into the anal-

ysis of tribal authority, the factual showing required

under § 131.8 is limited to the tribe’s assertion that (1)

there are waters within the reservation used by the tribe,

(2) the waters and critical habitat are subject to protection

under CWA, and (3) impairment of waters would have a

serious and substantial effect on the health and welfare of

the tribe. See id. at 64,879.

Once the tribe meets this initial burden, EPA will, in

light of the facts presented by the tribe and the gener-

alized statutory and factual findings regarding the impor-

tance of reservation water quality, presume that there has

been an adequate showing of tribal jurisdiction over fee

lands. See id. Unless the party objecting demonstrates the

tribe’s lack of jurisdiction, the EPA will determine there is

inherent authority. See id.

THE FLATHEAD RESERVATION

APPLICATION AND APPROVAL

FOR TAS STATUS

In 1992, the Tribes applied for TAS status with

respect to all surface waters within the Flathead Indian

Reservation. The Flathead Indian Reservation in Montana

is marked by at least two important characteristics that

have shaped this litigation. First, its dominant topical

feature is Flathead Lake, a large lake that, with its tribu-

taries, provides water for domestic, industrial, and agri-

cultural uses on the lands within the Reservation

boundaries. Second, the land within those boundaries

reflects a pattern of mixed ownership and control

re ee ——

Ree ee ee

rae oe wero ee

;

between tribal and non-tribal entities. These non-tribal

entities include the state, the county, and several munici-

palities that engage in regulated discharges on the Reser-

vation pursuant to existing NPDES permits.

In their application for TAS status, the Tribes identi-

fied several facilities on fee lands within the Reservation

that have the potential to impair water quality and bene-

ficial uses of tribal waters. These include feedlots, dairies,

mine tailings, auto wrecking yards and dumps, construc-

tion activities and landfills. Other actual or potential

point sources include wastewater treatment facilities,

commercial fish ponds and hatcheries, slaughterhouses,

hydroelectric facilities and wood processing plants.

Montana opposed granting the Tribes TAS status to

the extent such status would extend to reservation lands

and surface waters owned in fee by non-members of the

Tribes. The EPA director approved the Tribes’ application

after determining that the Tribes possessed inherent

authority over non-members on fee lands. Montana then

filed this action.

The Montana Appeal and the Scope of Inherent Authority

In general, absent express authorization by federal

statute or treaty, Indian tribes lack civil authority over the

conduct of non-members on non-Indian land within a

reservation. See Montana, 450 U.S. at 564, 101 S.Ct. at

1258. See also Strate v. A-1 Contractors, __. U.S. __, __.

117 S.Ct. 1404, 1409, 137 L.Ed.2d 661 (1997) (reaffirming).

The Court in Montana noted, however, that in certain

circumstances, even where Congress has not expressly

authorized it, Indian tribes retain inherent sovereign

10a

power to exercise civil jurisdiction over non-Indians on

fee lands. See Montana, 450 U.S. at 566, 101 S.Ct. at 1258.

The first exception to the general rule relates to non-

members who enter consensual relationships with the

tribe or its members. See id. at 565, 101 S.Ct. at 1258. The

second exception concerns conduct that “threatens or has

some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe.” Id. at 556,

101 S.Ct. at 1258.

Although the Supreme Court has applied the Mon-

tana rule in subsequent cases, the Court’s 1989 fractured

decision in Brendale, 492 U.S. 408, 109 S.Ct. 2994, 106

L.Ed.2d 343, left some confusion as to what the correct

standard should be. Brendale involved the authority of

tribes to zone non-Indian fee land. Although the Justices

disagreed over how to apply Montana’s second exception

in that context, a majority of the Justices nonetheless

agreed that the Montana rule controlled. Id. Later, in

Strate, a unified court reaffirmed the vitality of Montana.

In Strate, which was after the district court decision in

this case, the Court stressed that there must be a nexus

between the regulated activity and tribal self-governance

in order for the second Montana exception to apply. See

Strate, at __, 117 S.Ct. at 1416.

Montana’s position in the district court and in this

court has been that EPA got the scope of inherent author-

ity wrong, and that the Tribes should be able to engage in

nonconsensual regulation of non-tribal entities only when

all state or federal remedies to alleviate threats to the

welfare of the tribe have been exhausted and have proved

fruitless. Their brief relies heavily upon the opinions of

Justices Stevens and White in Brendale to argue that the

lla

Brendale decision effectively repudiated the Montana stan-

dard. That standard, in appellants’ view, had erroneously

equated tribal sovereignty with local government police

power.

We agree with appellants insofar as they contend that

the scope of inherent tribal authority is a question of law

for which EPA is entitled to no deference. EPA’s decision

to adopt inherent tribal authority as the standard

intended by Congress may well be viewed in a deferen-

tial light because the statute’s language and legislative

history were not entirely clear. See Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

843-44, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984).

EPA’s delineation of the scope of that standard, however,

has nothing to do with its own expertise or with any need

to fill interstitial gaps in the statute committed to its

regulation. Therefore, EPA’s delineation of the scope of

tribal inherent authority is not entitled to deference.

We cannot agree with appellants, however, that EPA

has committed any material mistakes of law in its delin-

eation of the scope of inherent tribal authority. Rather, the

agency took a cautious view by incorporating both Justice

White’s and Justice Stevens’ admonitions in Brendale that,

to support the exercise of inherent authority, the potential

impact of regulated activities must be serious and sub-

stantial. See Final Rule, 56 Fed.Reg. at 64,878; Brendale, 492

U.S. at 431, 109 S.Ct. at 3008 (White, J.); id., 492 US. at

447, 109 S.Ct. at 3016 (Stevens, J.). Moreover, in Justices

Stevens’ and White’s opinions, upon which Montana

relies, there is no suggestion that inherent authority exists

only when no other government can act.

12a

Indeed the EPA decision appears to adumbrate the

Supreme Court’s holding in Strate, ___ U.S. __, 117 S.Ct.

1404, 137 L.Ed.2d 661, that the exercise of tribal jurisdic-

tion over non-tribal members engaged in traffic accident

litigation was not necessary to the self-governance of the

tribe. We therefore disagree with appellants that Brendale

overruled Montana. The Strate decision reaffirms the

vitality of Montana; Brendale did not repudiate it.

EPA’s decision, applying its standards in this case,

found that the activities of the non-members posed such

serious and substantial threats to Tribal health and wel-

fare that Tribal regulation was essential. We have previ-

ously recognized that threats to water rights may invoke

inherent tribal authority over non-Indians. “A tribe

retains the inherent power to exercise civil authority over

the conduct of non-Indians on fee lands within its reser-

vation when that conduct threatens or has some direct

effect on the health and welfare of the tribe. This includes

conduct that involves the tribe’s water rights.” Colville

Confederated Tribes v. Walton, 647 F.2d 42, 52 (1981) (inter-

nal citations omitted, emphasis added). Colville also sup-

ports EPA’s generalized finding that due to the mobile

nature of pollutants in surface water it would in practice

be very difficult to separate the effects of water quality

impairment on non-Indian fee land from impairment on

the tribal portions of the reservation: “A water system is

a unitary resource. The actions of one user have an imme-

diate and direct effect on other users.” Id.

In contrast, the tribes in Strate reserved no right to

exercise control over the federal right-of-way maintained

by the state. See Strate, at __,117-S-Ct. at 1414. Further-

more, the conduct of users of a small stretch of highway

13a

has no potential to affect the health and welfare of a tribe

in any way approaching the threat inherent in impair-

ment of the quality of the principal water source.

Our decision is also fully consistent with the only

other circuit opinion that has yet considered the issue of

tribal authority to set water quality standards. City of

Albuquerque v. Browner, 97 F.3d 415 (10th Cir.1996). In that

case, the tribe had promulgated WQS that were more

stringent than federal standards. The city contended that

the tribal standards could not be more stringent than

federal standards. The court rejected the contention,

observing that the authority to establish such standards

“is in accord with powers inherent in Indian tribal sover-

eignty.” Id. at 423.

Accordingly, we affirm the district court’s decision

that EPA’s regulations pursuant to which the Tribe’s TAS

authority was granted are valid as reflecting appropriate

delineation and application of inherent Tribal regulatory

authority over non-consenting non-members.

THE INTERVENORS’ APPEAL

The Intervenors consist of the Flathead Joint Board of

Control, two irrigation districts, and four individual irri-

gators who own land in fee situated within the bound-

aries of the Reservation. None of the proposed

intervenors, however, holds an NPDES permit that may

potentially be modified due to any change in WQS

imposed by the Tribes.

To prevail on a motion to intervene as of right, the

intervenor must (1) make a timely motion, (2) claim a

l4a

“significantly protectable” interest in the property that is

the subject of the action, (3) demonstrate impairment of

its ability to protect that interest, and (4) prove that the

interest is inadequately represented by the parties to the

action. See Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th

Cir.1993).

The district court held that because the Intervenors

do not hold NPDES permits, the transfer of the right to

establish WQS from the state to the Tribes “will have no

immediate or any foreseeable, demonstrable effect upon

the proposed intervenors.” In their briefs to this court,

the Intervenors attempt to state a broader interest in the

enforcement process by suggesting that the imposition of

standards promulgated by the Tribes would violate their

civil rights by subjecting them to tribal jurisdiction. They

also argue that EPA approval of tribal WQS would

depress the value of their property.

Because the Intervenors hold no NPDES permits they

could not be subject to NPDES enforcement proceedings.

Moreover, TAS status does not confer enforcement

authority on the Tribes; it only enables the Tribes to set

the standards. Even if the Tribes applied for enforcement

authority, the NPDES permits would still be issued by

EPA and enforced in federal, not tribal, courts. Finally,

even assuming that EPA’s approval of the tribal WQS

program might affect property values, such a speculative

and purely economic interest does not create a protect-

able interest in litigation concerning a statute that regu-

lates environmental, not economic, interests. See Portland

Audubon Soc’y v. Hodel, 866 F.2d 302, 309 (9th Cir.1989) (an

adverse economic impact does not create a significant

15a

protectable interest in litigation under the National Envi-

ronmental Policy Act); see also Sierra Club, 995 F.2d at

1485-86 (city that holds permit under CWA has a protect-

able interest in CWA litigation that might affect a city’s

discharge from permitted operations).

CONCLUSION

The district court correctly entered summary judg-

ment in favor of the defendants on the underlying chal-

lenge to the grant of TAS status to the Tribes, and it also

correctly denied the Intervenors’ application to intervene

as of right. Its judgment is AFFIRMED.

16a

STATE OF MONTANA; Lake County, Montana, a

political subdivision of the State of Montana; City of

Ronan, Montana, a municipality of the State of

Montana; and Town of Hot Springs, Montana, a

municipal corporation, Plaintiffs,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, an agency of the United States; Carol

Browner, Administrator of the United States

Environmental Protection Agency; and the

Confederated Salish and Kootenai Tribes, Defendants.

No. CV 95-56-M-CCL.

United States District Court,

D. Montana,

Missoula Division.

March 27, 1996.

Joseph P. Mazurek, Attorney General for State of

Montana, Harley R. Harris, Clay R. Smith, Office of the

Montana Attorney General, Helena, MT, for Plaintiffs.

Sherry S. Matteucci, U.S. Attorney, District of Mon-

tana, Office of the U.S. Attorney, Billings, MT, Deanne L.

Sandholm, Office of the U.S. Attorney, Helena, MT, David

A. Carson, U.S. Department of Justice, Environmental

Enforcement, Denver, CO, Lauren N. Soll, U.S. Depart-

ment of Justice, Environment & Natural Resources, Wash-

ington, DC, for Defendant Environmental Protection

Agency and Defendant Carol M. Browner.

Daniel F. Decker, Confederated Salish & Kootenai

Tribes, Legal Department, Pablo, MT, for The Confeder-

ated Salish and Kootenai Tribes of the Flathead Nation.

Jon Metropoulos, Doney, Crowley, Bloomquist &

Metropoulos, P.C., Helena, MT, for Flathead Joint Board

gia ist

Rt a ee eee

Peat pe Te TT

Be cre oN Te

eRe Wert hte ae

DN ae 5 Baa) Roe iain «| hil

a nel a Sth tas

jie: amit Sec

ver

17a

of Control, Mission Irrigation District, Jocko Valley Irriga-

tion District, Flathead Irrigation District, Ross Middle-

mist, Wayne W. Maughan, William Slack, Glenn Murphy.

OPINION AND ORDER

LOVELL, District Judge.

Before the court is a motion to intervene filed by the

Flathead Joint Board of Control, the Mission Irrigation

District, the Jocko Valley Irrigation District, the Flathead

Irrigation District, Ross Middlemist, Wayne Maughan,

William Slack, and Glenn Murphy. The Defendants

oppose the motion, but Plaintiff consents to the interven-

tion. Also before the court are cross motions for summary

judgment.

1. Background.

In July, 1993, the Confederated Salish and Kootenai

Tribes (the “Tribes”) submitted a completed application

for treatment-as-state (“TAS”) status under section 303,

33 U.S.C. § 1313, of the Clean Water Act (“CWA”), 33

U.S.C. §§ 1251-1387 (1987 & 1995 Cum.Supp.), with

respect to all surface waters within the Flathead Indian

Reservation (the “Reservation”). The Environmental Pro-

tection Agency (“EPA”) notified the State of Montana

(“Montana”) of the Tribes’ application pursuant to 40

C.F.R. § 131.8(c)(2). Montana timely filed its comments

regarding the application in accordance with 40 C.F.R.

§ 131.8(c)(3). Montana opposed the EPA granting the

Tribes TAS status on the ground that the Tribes do not

possess inherent civil regulatory authority over lands

18a

owned by nonmembers. Montana also contested factual

assertions made by the Tribes in its application and

requested an evidentiary hearing through which Montana

could contest the Tribes’ factual allegations. Because only

Montana was considered an “appropriate governmental

entity” entitled to make comments on the Tribes applica-

tion, see 56 Fed.Reg. 64876, 64884 (December 12, 1991), the

local government Plaintiffs and the proposed intervenors

submitted their comments through Montana. All public

comments were considered by the EPA before reaching its

decision. See Decision Document, p. 7, AR # 27.

On February 27, 1995, the Director of EPA Region

VIII approved the Tribes’ application to establish water

quality standards for surface waters within the Reserva-

tion under section 303 of the CWA. The EPA found that

Montana did not rebut the presumption created by the

Tribes’ showing that pollution of surface waters travers-

ing or appurtenant to nonmember land would have

serious and substantial impact on the Tribes’ health and

welfare. On March 28, 1995, the Tribes adopted water

quality standards for all surface waters on the Reserva-

tion.! The Tribe has submitted those standards to the EPA

for approval in accordance with section 303(c) of the

CWA.

' The court notes that, according to the EPA Regional

Administrator, the water quality standards actually adopted by

the Tribes are “virtually identical” to the water quality

standards set by Montana. See Letter of William P. Yellowtail to

Senator Conrad Burns, Exhibit 2, Reply Brief in Support of

Motion to Intervene.

19a

2. Pleadings.

Plaintiffs filed their first amended complaint for

declaratory and injunctive relief on June 8, 1995. Plaintiffs

invoke the court’s jurisdiction pursuant to the Adminis-

trative Procedures Act, 5 U.S.C. § 702.

(a) Plaintiffs’ complaint.

Montana holds a permit that allows discharges into

Flathead Lake from the State’s Yellow Bay research facil-

ity. Montana’s permit was issued by the State under the

Montana Pollutant Discharge Elimination System

(“MPDES”). Mont.Code Ann. § 75-5-605(2) (1994);

Mont.Admin.R. 16.20.1300-.1347. Montana believes that

because the EPA has decided to grant the Tribes treat-

ment-as-state (TAS) status, the State will now be required

to seek an additional permit from the EPA under its

National Pollutant Discharge Elimination System

(“NPDES”) program. See 33 U.S.C. § 1342.

Lake County owns a wastewater treatment facility on

the Reservation, which makes discharges into Post Creek.

Lake County already holds an NPDES permit issued by

the EPA.

The City of Ronan owns a wastewater treatment facil-

ity on the Reservation, which makes discharges into

Crow Creek. Ronan holds an MPDES permit issued by

the State of Montana. Ronan alleges that EPA is now

requiring it to obtain an NPDES permit.

The Town of Hot Springs owns a wastewater treat-

ment facility within the Reservation, which makes dis-

charges into Hot Springs Creek. Hot Springs holds an

20a

MPDES permit issued by the State of Montana. Hot

Springs alleges that EPA is now requiring it to obtain an

NPDES permit.

Plaintiffs’ First Claim for Relief asserts that the EPA’s

final decision is based upon an erroneous application of

legal principles relating to the Tribes’ inherent regulatory

authority and that the interested parties were not granted

an evidentiary hearing attacking the facts upon which the

agency decision was based. Furthermore, Plaintiffs state

that the final decision improperly subjects them to the

civil regulatory authority of the Tribes and infringes on

Montana’s authority under section 401 of the CWA.?

Montana concludes that the EPA’s decision to grant TAS

status to the Tribes has or will in the future result in the

State of Montana being deprived of its authority as a state

under section 401 of the CWA.

Plaintiffs’ Second Claim for Relief asserts that the

Tribes are without authority to rely on the agency action

for the purpose of regulating Plaintiffs’ activities on the

Reservation.

The Plaintiffs request a declaratory judgment that

determines that the agency action granting TAS to the

2 Under section 401, 33 U.S.C. § 1341, the relevant state

must certify to the EPA that a proposed NPDES permit will be in

compliance with state’s water quality standards. Of course,

because the Tribes have been granted TAS status, Montana is no

longer the certifying authority for purposes of section 401.

However, whether Montana or the Tribes certifies compliance,

in either instance the EPA retains final decision-making

authority over the issuance of NPDES permits.

iti ici seta G tie

2la

Tribes pursuant to section 518(e) of the CWA was unlaw-

ful and that the Tribes are without authority to rely upon

the agency action.

(b) EPA’s Answer to Plaintiffs’ Complaint.

EPA concedes that Yellow Bay’s compliance with the

CWA is conditioned upon Yellow Bay’s application for a

NPDES permit if Yellow Bay discharges pollutants from a

point source into waters of the United States on the

Flathead Reservation. EPA questions who historically

considered Yellow Bay to be in compliance with the CWA.

Likewise, EPA questions who historically considered

Ronan’s wastewater treatment facility to be in compliance

with the Clean Water Act. EPA also admits that Ronan’s

compliance with the CWA is conditioned upon Ronan’s

application for and receipt of a federal NPDES permit if

Ronan discharges pollutants from a point source into

waters of the United States on the Flathead Reservation.

EPA poses a similar question and states a similar admis-

sion as to the Town of Hot Springs.

EPA also avers that federal administrative remedies

are available to any discharger who is required to obtain

a permit from EPA pursuant to section 402 of the CWA.

See 40 C.F.R. § 122-124 (1995). EPA admits that such a

permit may include effluent limitations necessary to meet

the water quality standards adopted by the Tribes. How-

ever, EPA asserts that it and not the Tribes will retain

3 The Tribes’ Answer to Plaintiffs’ Complaint avers that the

Yellow Bay Wastewater Treatment Facility made an application

for an NPDES permit on June 19, 1995.

22a

NPDES permitting authority on the Reservation,* and

that it and not Montana has always held CWA regulatory

jurisdiction over the waters of the United States on the

Flathead Indian Reservation. The EPA also asserts that

the court lacks jurisdiction over Plaintiffs’ claims, that the

complaint states claims for which relief cannot be

granted, that Plaintiffs lack standing, that Plaintiffs’

claims are not ripe for review and are not justiciable.

The Tribes admit they have waived their sovereign

immunity for purposes of accepting service of Plaintiffs’

First Amended Complaint. The Tribes assert that Plain-

tiffs’ claims are not within the zone of interests meant to

be protected by the Clean Water Act and that Plaintiffs’

interest has not been or will not be injured or adversely

affected by agency action within the meaning of 5 U.S.C.

§ 704. The Tribes assert that there is no actual controversy

upon which this court may declare the rights and legal

relations, and therefore Plaintiffs’ claims are not justicia-

ble. The Tribes assert that Montana has failed to timely

challenge the 1991 regulations upon which EPA’s decision

is based; the Tribes assert that Montana’s claim is stale

since Montana commented on the regulations and/or

actively participated in the formulation of those regula-

tions by the EPA. Finally, the Tribes assert that the Plain-

tiffs have failed to allege facts sufficient to establish a

+ See EPA’s Memorandum in Opposition to JBC’s Motion to

Intervene, at p. 8.

23a

valid facial challenge to the regulations and policy com-

plained of in Plaintiffs’ complaint.

(d) Proposed Plaintiff-Intervenors’ proposed com-

plaint.

The JBC and the Irrigation Districts provide water for

over one hundred thousand acres of irrigated land,° and

the water is delivered from the federal Flathead Irrigation

and Power Project. Approximately 2,000 farmers and

ranchers own this land. Proposed Intervenors bring their

complaint pursuant to the APA, 5 U.S.C. § 702. Intervenor

Irrigation Districts assert inter alia that they have been

granted the power by the Montana Legislature to appro-

priate water, acquire water rights, acquire reservoirs 2nd

dams, and acquire the land for such works. Mont.Code

Ann. § 85-7-1904 (1995). The Irrigation Districts also

assert that they hold the power to regulate, supervise,

apportion and control water distribution. Mont.Code

Ann. § 85-7-1922 (1995).

The JBC and the Irrigation Districts have filed

numerous lawsuits involving the irrigation system on-+he

Reservation. They have filed water rights claims in the

Montana Water Court pursuant to the Montana Water

Use Act, Mont.Code Ann. § 85-2-101, et seq. (1995). They

have, with Intervenors Middlemist and Maughan, filed

5 The Flathead Indian Reservation encompasses some 1.2

million acres, and contains approximately 4,000 natural stream

miles. In addition, approximately 1300 miles of irrigation canals

and laterals exist under the authority of the Flathead Agency

irrigation Division/Flathead Irrigation Project, Bureau of

Indian Affairs, United States Department of the Interior.

24a

suit against the Tribes to contest tribal Ordinance 87A,

the Aquatic Lands Conservation Ordinance (“ALCO”).

Middlemist, et al. v. Pablo, et al., CV No. 95-68-M-CCL;

Middlemist, et al. v. Pablo, et al., No. 95-343- CV (Tribal

Court). Without explanation, proposed Plaintiff-Inter-

venors suggest that this court’s decision in this case may

have stare decisis or res judicata effect on the ongoing

litigation in Middlemist v. Pablo.

Proposed Plaintiff-Intervenors Wayne Maughan, Ross

Middlemist, William Slack and Glenn Murphy are irriga-

tors and members of the JBC and the Irrigation Districts.

They commonly undertake typical irrigation activities in

the course of farming and ranching.

Proposed Plaintiff-Intervenors complain that they

received no individual notice of the Tribes’ application

for TAS status because the EPA has specifically excluded

individuals and local governments from the TAS notice

and comment process. See 40 C.F.R. § 131.8(c)(2) (1995); 56

Fed.Reg. at 64884. The EPA notifies, and requests the

comments of, only the relevant federal agencies and state

and tribal governments. However, the EPA does place an

announcement in appropriate newspapers, directing

interested parties to submit their comments to the appro-

priate state government. Id. In this case, all public com-

ments submitted through the State of Montana were

considered by the EPA.

Proposed Plaintiff-Intervenors assert that the Tribes

have previously attempted to recover from the United

States certain water rights, hunting and fishing rights,

rights to land, and exclusive use and occupation of the

reservation. See Act of March 13, 1924, 43 Stat. 21; Act of

Z ‘

L. :

25a

July 30, 1946, 60 Stat. 715; Act of August 13, 1946, 60 Stat.

1049, Indian Claims Commission Act. Proposed Plaintiff-

Intervenors theorize that the Tribes should now be pre-

cluded from making additional claims to sovereign

authority over nonmember activity on fee land, having

foregone such additional claims at earlier opportunities.

Proposed Plaintiff-Intervenors express concern that

the Tribes might assert authority over either civil or crim-

inal violations of the CWA. Proposed Plaintiff-Inter-

venors assert that they cannot receive a fair trial in a

tribal court, which trial would, among other things, vio-

late their right to be tried by a jury of their peers. Pro-

posed Plaintiff-Intervenors object to the fact that the

Tribes will not permit them to vote, hold office, sit on a

jury, or act as tribal judges.

Proposed Plaintiff-Intervenors’ First Claim for Relief

asserts that the agency action is not in accordance with

the law and has aggrieved them within the meaning of 5

U.S.C. § 702. The Second Claim for Relief asserts that the

agency action was unlawful because it denied Murphy

the opportunity to be heard. The Third Claim for Relief

asserts that the agency action was unlawful because it

presumed that the Tribes have civil regulatory jurisdic-

tion over Murphy. The Fourth Claim for Relief asserts

that the agency action violates the supremacy clause of

the United States Constitution in that Congress has previ-

ously divested the Tribes of civil regulatory jurisdiction,

and EPA cannot now contradict that divestment. The

Fifth Claim for Relief asserts that the agency action is

unlawful because it divests them of their federal constitu-

tional right to full and equal participation in the govern-

ment under which they must live.

26a

3. Applicable Statutes and Regulations.

The EPA administers the Clean Water Act (“CWA”),

33 U.S.C. §§ 1251-1387 (1987 & 1995 Cum.Supp.). The

CWA was enacted in order to restore and maintain the

quality of the Nation’s waters, see 33 U.S.C. § 1251(a), and

it prohibits the discharge from a point source® of any

pollutant into the waters of the United States unless that

discharge complies with the CWA. 33 U.S.C. § 1311{(a).

The CWA was amended in 1987 by the Water Quality Act

of 1987 (“WQA”), P.L. 100-4, 101 Stat. 7. The WQA added

a new provision, section 518, which allows the EPA to

treat Indian tribes as states for certain purposes of the

Act. 33 U.S.C. § 1377(e).

There are two major permit programs in the CWA.

Section 402 of the CWA provides the framework for a

permitting system for pollution dischargers, known as

the National Pollutant Discharge Elimination System

(“NPDES”). See 33 U.S.C. § 1342. Section 404 of the CWA

provides the framework for an Army Corps of Engineers

permitting system for discharges of dredged or fill mate-

rial into the waters of the United States. See 33 U.S.C.

§ 1344.

The permit programs are based upon water quality

standards that are set by the states pursuant to section

301(b)(1)(C) of the CWA, 33 U.S.C. § 1311(b)(1)(C). The

6“[A]ny discernible, confined and discrete

conveyance . . . from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14). “[A]gricultural stormwater

discharges and return flows from irrigation” are excluded from

the definition of “point source.” Id.

MTL ee EET Re TS Ne pene.

27a

CWA requires each state to adopt water quality standards

for its intrastate and interstate waters. 33 U.S.C.

§ 1313(a)-(c). The EPA must approve the water quality

standards set by states. 33 U.S.C. § 1313(c)(1), (3). When

the EPA is the permitting authority, states have the

opportunity to certify whether a discharge under a pro-

posed permit will be consistent with its water quality

standards. 33 U.S.C. § 1341. If the state concludes that its

water quality standards will not be achieved, then the

permit cannot issue unless it is modified to comply with

the standards. Id.

Irrigation is not an activity regulated by the CWA,

which specifically excludes “agricultural stormwater dis-

charges and return flows from irrigated agriculture” from

point source regulation. 33 U.S.C. § 1362(14). The CWA

does not regulate the extraction or allocation of ground-

water or surface water, or any other water quantity right.

33 U.S.C. § 1251(g). Instead, the CWA regulates pollutants

added to surface water from point sources. See 40 C.F.R.

§ 122.1(b).

Under section 518(e) of the WQA, the EPA is autho-

rized to treat an Indian tribe in the same manner as a

state for certain purposes, including the development of

water quality standards. 33 U.S.C. § 1377(e); 40 C.FR.

§§ 131.3-131.8 (1995). Section 518 provides that:

The Administrator is authorized to treat an

Indian tribe as a State for purposes of title II and

sections 104, 106, 303, 305, 308, 309, 314, 319,

401, 402, and 404 of this Act [33 U.S.C.S. §§ 1281

et seq., 1254, 1256, 1313, 1315, 1318, 1319, 1324,

1329, 1341, 1342, 1344] to the degree necessary

28a

to carry out the objectives of this section, but

only if - a

(1) the Indian tribe has a governing body car-

rying out substantial governmental duties and

powers;

(2) the functions to be exercised by the Indian

tribe pertain to the management and protection

of water resources which are held by an Indian

tribe, held by the United States in trust for

Indians, held by a member of an Indian tribe if

such property interest is subject to a trust

restriction on alienation, or otherwise within the

borders of an Indian reservation; and

(3) the Indian tribe is reasonably expected to

be capable, in the Administrator’s judgment, of

carrying out the functions to be exercised in a

manner consistent with the terms and purposes

of this Act and of all applicable regulations.

Such treatment as a State may include the direct

provision of funds reserved under subsection (c)

to the governing bodies of Indian tribes, and the

determination of priorities by Indian tribes,

where not determined by the Administrator in

cooperation with the Director of the Indian

Health Service. The Administrator, in coopera-

tion with the Director of the Indian Health Ser-

vice, is authorized to make grants under title II

of the Act in an amount not to exceed 100 per-

cent of the cost of a project. Not later than 18

months after the date of the enactment of this

section, the Administrator shall, in consultation

with Indian tribes, promulgate final regulations

which specify how Indian tribes shall be treated

as States for purposes of this Act. The Adminis-

trator shall, in promulgating such regulations,

consult affected States sharing common water

29a

bodies and provide a mechanism for the resolu-

tion of any unreasonable consequences that may

arise as a result of differing water quality stan-

dards that may be set by States and Indian tribes

located on common bodies of water. Such mech-

anism shall provide for explicit consideration of

relevant factors including, but not limited to, the

effects of differing water quality permit require-

ments on upstream and downstream dis-

chargers, economic impacts, and present and

historical uses and quality of the waters subject

to such standards. Such mechanism should pro-

vide for the avoidance of such unreasonable

consequences in a manner consistent with the

objective of this Act.

* * *

(h)(1) “Federal Indian reservation” means all

land within the limits of any Indian reservation

under the jurisdiction of the United States Gov-

ernment, notwithstanding the issuance of any

patent, and including rights-of-way running

through the reservation; and

(2) “Indian tribe” means any Indian tribe,

band, group, or community recognized by the

Secretary of the Interior and exercising govern-

mental authority over a Federal Indian reserva-

tion.

33 U.S.C. § 1377(e), (h) (1987 & Cum.Supp.1995)

(emphasis added). The court has reviewed the amicus

curiae brief submitted by the Assiniboine and Sioux

Tribes of the Fort Peck Reservation, Montana, whose

application to EPA for TAS status is now pending.

Amicus counsel asserts, based upon the statutory lan-

guage emphasized above, that section 518 provides tribes

30a

with federally-delegated tribal jurisdiction over non-

Indians. Their reading emphasizes the fact that in section

518(h) Congress expressly included all lands of the Reser-

vation within its definition of the Reservation, “notwith-

standing the issuance of any patent,” and in section

518(e) Congress expressly specified that the Tribes should

manage and protect water resources that are (1) held by

an Indian tribe, (2) held by the United States in trust for

Indians, (3) held by a member of an Indian tribe if such

property interest is subject to a trust restriction on aliena-

tion, or (4) otherwise within the borders of an Indian

reservation. It appears that the legislative history is

ambiguous, although only arguably so since the legisla-

tive history relates mainly to concern regarding whether

section 518(e) pertains to water quantity rights of non-

Indians, which of course it does not.

Congress may delegate such jurisdiction to Indian

tribes. See United States v. Mazurie, 419 U.S. 544, 557, 95

S.Ct. 710, 717-18, 42 L.Ed.2d 706 (1975) (affirming federal

conviction for violation of tribal liquor ordinance on basis

of a federal delegation to the Wind River Tribe of right to

regulate liquor trade on reservation). Indeed, the statu-

tory language seems to indicate plainly that Congress did

intend to delegate such authority to tribes if the three

criteria listed in section 518(e) were met. In fact, in the

Brendale decision, Justice White, writing for the Court,

cited this very statute as an example of an explicit delega-

tion of Congressional authority to Indian tribes. See Bren-

dale v. Confederated Tribes and Bands of the Yakima Nation,

492 U.S. 408, 428, 109 S.Ct. 2994, 3006-07, 106 L.Ed.2d 343

(1989) (White, J.). This interpretation of sections 518(e)

(

and (h)(1) comports with common-sense, for it seems

3la

highly unlikely that Congress contemplated granting to

tribes the authority to set water quality standards for

only those segments of streams traversing or appurtenant

to Indian lands, while at the same time state water quality

standards would remain in effect on the reservation for

those same streams where the stream segments traverse

or bound non-Indian land. However, EPA determined

that it would take the more cautious view, that Congress

did not expressly delegate jurisdiction to tribes over non-

Indians and that tribes would have to prove on a case-by-

case basis that they possess such jurisdiction. See 56

Fed.Reg. 64,876, 64,879-80 (1991).

The application regulations are found at 40 C.F.R.

§ 131.8, adopted by the EPA on December 12, 1991. 56

Fed.Reg. 64895 (Dec. 12, 1991), as amended at 59 Fed.Reg.

64344 (Dec. 14, 1994). § 131.8(a) provides that:

The Regional Administrator . . . may accept and

approve a tribal application for purposes of

administering a water quality standards pro-

gram if the Tribe meets the following criteria:

(1) The Indian Tribe is recognized by the Secre-

tary of the Interior...,

(2) The Indian Tribe has a governing body car-

rying out substantial governmental duties and

powers,

(3) The water quality standards program to be

administered by the Indian Tribe pertains to the

management and protection of water resources

which are within the borders of the Indian reser-

vation and held by the Indian Tribe, within the

borders of the Indian reservation and held by

the United States in trust for Indians, within the

borders of the Indian reservation and held by a

32a ,

member of the Indian Tribe if such property

interest is subject to a trust restriction on aliena-

tion, or otherwise within the borders of the

Indian reservation, and

(4) The Indian Tribe is reasonably expected to

be capable, in the Regional Administrator’s

judgment, of carrying out the functions of an

effective water quality standards program in a

manner consistent with the terms and purposes

of the Act and applicable regulations.

40 C.F.R. § 131.8(a) (1995).

In the preamble to EPA’s Final Rule regarding the

procedures by which an Indian tribe may qualify for TAS,

the EPA analyzes inherent tribal authority over reserva-

tion lands owned in fee by nonmember. 56 Fed.Reg.

64876. Specifically, the EPA analyzes Montana v. United

States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981),

and Brendale v. Confederated Tribes and Bands of the Yakima

Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343

(1989). The EPA adopted an interim operating rule, to be

applied on a case-by-case basis, to determine whether an

Indian tribe has authority over reservation lands owned

in fee by nonmembers. 56 Fed.Reg. at 64878-79.

The EPA’s operating rule is based on the second

Montana exception allowing for tribal authority over non-

member lands: “a tribe may also retain inherent power to

exercise civil authority over the conduct of non-Indians

on fee lands within its reservation when that conduct

threatens or has some direct effect on the political integ-

rity, the economic security, or the health or welfare of the

tribe.” Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258. The

EPA’s operating rule requires a tribe to show that the

SE et

ere Wee eee en ee = ifn PA se ah I ee eee pee oe ee

‘a leg eis EN IE EOL le POST TL AE oe)

tha Si DRG RE VELA SE ale BP EGR

aces pee She ea

33a

“potential impacts of regulated activities on the tribe are

serious and substantial.” 56 Fed.Reg. at 64878. In other

words, the EPA does not require a tribe to wait until a

point source discharger located on non-Indian lands is

actually polluting tribal waters before the tribe can apply

for TAS status; instead, a tribe can simply show that there

is a potential for such pollution in the future and were

such pollution to occur it would have serious and sub-

stantial impacts upon the tribe.

In determining the scope of inherent tribal authority

for purposes of section 518(e), the EPA considered the

Supreme Court's decision in Brendale v. Confederated Tribes

and Bands of the Yakima Nation, 492 U.S. 408, 109 S.Ct.

2994, 106 L.Ed.2d 343 (1989) (4:2:3 split, deciding that

county should have exclusive zoning authority over non-

Indian property in predominantly fee area but tribe

should have exclusive zoning authority over non-Indian

property in predominantly tribal area). The EPA deter-

mined that the primary significance of Brendale is that its

result is consistent with the exceptions stated in Montana:

Indian tribes retain inherent sovereign power to

exercise some forms of civil jurisdiction over

non-Indians on their reservations, even on non-

Indian fee lands. A tribe may regulate . . . the

activities of non-members who enter consensual

relationships with the tribe or its members,

through commercial dealings, contracts, leases,

or other arrangements. . . . A tribe may also

retain inherent power to exercise civil authority

over the conduct of non-Indians on fee lands

within its reservation when that conduct

ee ee Ne ne Te

34a

threatens or has some direct effect on the politi-

cal integrity, the economic security, or the health

or welfare of the tribe.

Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258 (citations

omitted). The EPA interpreted Brendale as finding no

tribal jurisdiction where the proposed activities “would

not threaten the Tribe’s . . . health or welfare.” Brendale,

492 U.S. at 432 (White, J., writing for the Court). EPA

concluded that the best policy is to determine tribal

authority over nonmember fee lands on a case-by-case

basis, by examining potential threats against water qual-

ity as they relate to a particular Tribe’s health or welfare.

EPA noted that in Brendale the issue was zoning, whereas

in water quality management it is easier to establish

effects on tribal health and welfare. Id. at 64879.” There-

fore, the EPA decided to require a showing from each

tribal applicant “that the potential impacts of regulated

activities on the tribe are serious and substantial.” 56

Fed.Reg. at 64878.

In that 1991 rule, however, the EPA reserved to itself

the opportunity to take into account environmental stat-

utes and legislative findings regarding the seriousness of

water pollution. Jd. In making a factual finding of impact

of a water-related activity on a particular tribe, the EPA

7 This is so because zoning impacts are normally discrete

and localized, whereas water pollution creates environmental

health risks that may affect many people miles from the source.

When tribal members use surface water, or take fish or animal

resources that use the surface water, pollution from non-Indian

lands within the reservation could have a grave impact upon

tribal health and environmental interests.

35a

also relies on its special expertise and practical experi-

ence in the areas of water management and the impact of

clean water on critical habitat. Id. The EPA notes that

pollutants in surface waters are mobile by nature, and it

is impractical to try to separate water quality impairment

of tribal waters from impairments of non-Indian waters.

Id. “EPA believes that a ‘checkerboard’ system of regula-

tion, whereby the Tribe and State split up regulation of

surface water quality on the reservation, would ignore

the difficulties of assuring compliance with water quality

standards when two different sovereign entities are estab-

lishing standards for the same small stream segments.”

Id. In light of the importance of water quality manage-

ment in protecting public health and safety, and in light

of the mobile nature of water pollution, the EPA made a

generalized finding that there is a relationship between

water quality and tribal health and welfare.

The 1991 rule further determines that in order to

meet the requisites of § 131.8, a tribe need only assert that

there are waters in the reservation used by the tribe or

tribal members, the waters are subject to protection under

the CWA, and impairment of those waters by the activ-

ities of non-Indians would have a serious and substantial

effect on the health and welfare of the Tribe. Id. at 64879.

At that point, according to the EPA, a tribe has made an

adequate showing of tribal jurisdiction over fee lands,

and it is up to the competing governmental entity to

demonstrate the tribe’s lack of jurisdiction. Id. Presuma-

bly, the competing governmental entity would need to

prove that impairment of tribal waters by the activities of

non-Indians would not have a serious and substantial

effect on the health and welfare of a tribe.

Fe en a ee

36a

4. Legal Standards on Motion to Intervene.

(a) Intervention as of Right.

The four-part test for intervention as of right under

Rule 24(a) is as follows:

(1) The motion must be timely; (2) the appli-

cant must claim a “significantly protect-

able” interest relating to the property or

transaction which is the subject of the

action; (3) the applicant must be so situated

that the disposition of the action may as a

practical matter impair or impede its ability

to protect that interest; and (4) the appli-

cant’s interest must be inadequately repre-

sented by the parties to the action.

Sierra Club v. Environmental Protection Agency, 995

F.2d 1478, 1481 (9th Cir.1993). The proposed intervenor

bears the burden of demonstrating that he is entitled to

intervene under Rule 24. Petrol Stops Northwest v. Conti-

nental Oil Co., 647 F.2d 1005, 1010 n. 5 (9th Cir.), cert.

denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 639 (1981).

(b) Permissive Intervention.

A court may exercise its discretion to grant permis-

sive intervention when (1) the motion is timely, Rule

24(b); (2) the movant’s claim or defense and the main

action have a question of law or fact in common, Rule

24(b)(2); and (3) movant has an independent ground of

jurisdiction to support permissive intervention. See

Greene v. United States, 996 F.2d 973, 978 (9th Cir.1993); see

also 3B Moore’s Federal Practice, § 24.18. If proposed

intervenors make these three showings, a court may then

37a

utilize its discretion to determine the most fair and most

efficient method of handling the case.

5. Discussion of Motion to Intervene.

The EPA Decision Document notes that tribal regula-

tory jurisdiction over non-members is not being deter-

mined for all purposes, but merely for the purpose of

setting water quality standards for the Reservation under

40 C.F.R. § 131.8(a)(3). The EPA intends to continue issu-

ing federal permits under section 402 of the CWA

(NPDES), which the EPA will then enforce in federal

court.

The Defendants contend that the proposed Plaintiff-

Intervenors have no “significantly protectable” interest in

this litigation. Proposed Plaintiff-Intervenors claim ten

separate interests: (1) ownership of real property within

the reservation; (2) ownership of water quantity rights

within the Reservation; (3) ownership of a water use

permit issued by the State of Montana and accompanying

right to operate a reservoir within the Reservation; (4)

attempted participation in the administrative process for

the challenged decision; (5) participation in other litiga-

tion allegedly relating to the subject matter of this case;

(6) interests in retaining constitutional rights; (7) interests

in real property; (8) interests in prior acts of Congress

interpreting tribal authority; (9) interest in maintaining

JBC and the Districts as local governments; (10) interests

in retaining the right to a trial by a jury of their peers for

CWA civil violations and the right to participate in the

administrative process by which the agency decision was

reached.

38a

However, the federal Defendants point out that the

proposed intervenors have no special interest in the sub-

ject matter of this particular litigation — water quality

standards of surface waters of the Flathead Indian Reser-

vation. Because the proposed intervenors’ sole interest

lies in irrigation, they have no “significantly protectable”

interest in this case. The federal Defendants inform the

court that none of the proposed intervenors holds an

NPDES permit which might potentially be modified due

to any change in water quality standards imposed by the

Tribes. Therefore, proposed intervenors are not in any

way directly affected by the transfer of water quality

standards authority from the State to the Tribes. Put

another way, the transfer of the right to establish water

quality standards from the State to the Tribes will have no

immediate or any foreseeable, demonstrable effect upon

the proposed intervenors.

In Sierra Club v. Environmental Protection Agency, 995

F.2d 1478, the Ninth Circuit concluded that the CWA

protects the interest of a person who discharges pollu-

tants pursuant to a NPDES permit, and held that an

NPDES permit holder could intervene in a case which

might result in stricter permit discharge limits. Here,

none of the proposed Intervenors possess an NPDES

permit or would in any demonstrable way be affected by

the setting of water quality standards by the Tribes. Nei-

ther do any of the proposed Intervenors engage in any

activity that is regulated by the CWA.® Proposed Inter-

venors’ reliance on their possession of a water use permit

* It is conceivable that one or more of the proposed

Intervenors could be engaging in regulated activity. See 40

C.F.R. § 122.23 (requiring NPDES permit for Concentrated

39a

relating to allocation of reservoir water is of no effect

because it has no relationship to the CWA or the issues in

this case.

Proposed Intervenors also cite Mille Lacs Band of Chip-

pewa Indians v. Minnesota, 989 F.2d 994 (8th Cir.1993), to

support their intervention. However, that appellate panel

ruled that certain counties and individuals should have

been allowed to intervene in that litigation because their

land would be directly affected by the Mille Lacs Band’s

right to enter their properties for the purposes of hunting

and fishing. There is no such clear link in this case.

Proposed Intervenors assert that their interests are

significantly protectable, and that the defendants have

failed to adequately address their interests. Perhaps that

is so because their interests are so vaguely stated. For

example, proposed Intervenors assert that any expansion

of governmental power by the Tribes causes their prop-

erty values to drop; thus their purported property inter-

est is in keeping tribal government small.? This general

Animal Feeding Operations). See also Appendix B to Part 122,

defining Concentrated Animal Feeding Operations as having

more than 1,000 slaughter and feeder cattle, 700 mature dairy

cattle (milked or dry), 2,500 swine, 500 horses, 10,000 sheep or

lambs, etc., confined to a lot not having vegetative growth for at

least 45 days per year. However, because none of the proposed

Intervenors possesses an NPDES or asserts that he engages in

any regulated activity requiring an NPDES permit, the court

assumes that none of their farm and ranch operations meets the

criteria for a Coneentrated Animal Feeding Operation.

° Proposed Intervenors present the affidavit of Mr. Stelling,

a certified real estate agent/broker and owner of a real estate

firm in western Montana. Mr. Stelling concludes that “I am

40a

concept may be accurate, but the interest is vague and

attenuated, and there is no statute that entitles proposed

Intervenors to bring such a claim.

Similarly vague and confusing is proposed Inter-

venors interest in protecting their right to trial by jury of

their peers. This court cannot fathom what it is in this

case that relates to the right to trial by jury of one’s peers

or in what way this right would be violated.

Proposed Intervenors state that they are also (in

other litigation) challenging the Tribes’ right to require

them to obtain a permit from the Shoreline Protection

Office of the Natural Resources Department of the Tribes

pursuant to Tribal Ordinance 87A (the Aquatic Lands

Conservation Ordinance (“ALCO”)). See Middlemist v.

Pablo, CV 95-68-M-CCL. Proposed Intervenors make the

claim that the fact that they are litigating tribal jurisdic-

tion over non-member lands in Middlemist should entitle

them to intervene in this litigation. However, proposed

Intervenors do not have any apparent interest in permit-

ted discharges of pollutants regulated by the CWA. Fur-

thermore, the EPA’s finding of tribal jurisdiction over

convinced that until and unless the issue of tribal jurisdiction

over non-member property is resolved with a finding that they

do not have such authority, property values will continue to be

lower than comparable lands in other areas.” (Stelling Aff.,

Exhibit 8, Mem.Supp.Interv.) It is apparent that proposed

Intervenors believe that their land should have comparable

values to off-reservation land. Standing alone, this claim for loss

of property value tied to strength of tribal government does not

suffice to support intervention as of right, and the cases cited by

proposed Intervenors do not support the contention.

4la

surface waters appurtenant to non-member lands is lim-

ited to the statutes and regulations in issue in this case.

This court finds that the proposed Intervenors have

no significantly protectable interest in the outcome of this

litigation and therefore are not entitled to intervene as of

right.

As to permissive intervention, this court questions

whether proposed Intervenors have any independent

grounds of jurisdiction to support their permissive inter-

vention. See Greene v. United States, 996 F.2d 973, 978 (9th

Cir.1993) (requiring independent grounds of jurisdiction

to support permissive intervention). The Administrative

Procedures Act does not provide independent jurisdic-

tional basis; it only prescribes standards for reviewing

agency action once jurisdiction is otherwise established.

Staacke v. United States Secretary of Labor, 841 F.2d 278 (9th

Cir.1988). Proposed Intervenors have no statutory basis

for suit pursuant to the CWA. See Middlesex Cty. Sewerage

Auth. v. Sea Clammers, 453 U.S. 1, 15-18, 101 S.Ct. 2615,

2623-25, 69 L.Ed.2d 435 (concluding that Congress

intended that no private remedies be implied by the CWA

in addition to those expressly provided). However, even

if proposed intervenors could establish an independent

ground of jurisdiction, this court would not be inclined to

grant permissive intervention for the reason that such

intervention would be likely to unduly delay or compli-

cate the resolution of this case. Such an intervention

would not lead to the fairest and most efficient handling

of this case.

42a

6. Cross Motions for Summary Judgment.

(a) Legal Standard.

A party is entitled to summary judgment in its favor

if it can “show that there is no genuine issue as to any

material fact and . . . [it] is entitled to a judgment as a

matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is

particularly appropriate where, as here, review is on the

administrative record. Adams v. United States, 318 F.2d

861, 865 (9th Cir.1963); Denison v. Udall, 248 F.Supp. 942,

944 (D.Ariz.1965) (“there should be no de novo review by

this Court, but a determination that the final administra-

tive decision is or is not substantially supported by the

administrative record. Therefore, a summary judgment

pursuant to [Fed.R.Civ.P. 56] may be granted for either

party in response to their cross motions”). See also Florida

Fruit & Vegetable Ass'n v. Brock, 771 F.2d 1455, 1459 (11th

Cir.1985), cert. denied, 475 U.S. 1112, 106 S.Ct. 1524, 89

L.Ed.2d 921 (1986) (Summary judgment procedure is

“particularly appropriate” in record review cases) (quot-

ing 10A Wright, Miller & Kane, Federal Practice and

Procedure: Civil 2d § 2733 (1983)).

(b) Discussion.

The focus of the cross motions for summary judg-

ment is whether the EPA properly interpreted Montana

and Brendale when it concluded that the Tribes could

meet the second Montana exception. The Plaintiffs assert

that the Montana test has given way to an open-closed

area analysis first enunciated in Brendale and repeated in

South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309, 124

43a

L.Ed.2d 606 (1993). The parties are in agreement that this

court must subject EPA’s interpretation of case law to de

novo review. See Arizona Pub. Serv. Co. v. Aspaas, 69 F.3d

1026, 1031 (9th Cir.1995).

However, in reviewing the final EPA action, this

court may not make a de novo determination. Instead,

this court must determine whether the EPA’s action was

“arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.” 5 U.S.C. § 706(2)(A). See

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416,

91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); Rybachek v.

Environmental Protection Agency, 904 F.2d 1276, 1284 (9th

Cir.1990). This court’s function is to ensure that the

agency considered all of the relevant factors and that its

decision contained no ‘clear error of judgment.’ ” Arizona

v. Thomas, 824 F.2d 745, 748 (9th Cir.1987) (citation omit-

ted). This court need not determine that the EPA’s con-

struction of the CWA is the only construction possible;

instead, this court must determine that EPA’s understand-

ing of this CWA provision is sufficiently rational as to

preclude this court from substituting its judgment for

that of EPA. Chemical Mfrs. Ass'n v. Natural Resources

Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107-08,

84 L.Ed.2d 90 (1985). Finally, “[a]n agency’s interpretation

of its own regulations is entitled to a high degree of

deference and will be upheld as long as it is not plainly

erroneous or inconsistent with the regulation.” Washing-

ton State Health Facilities v. DSHS, 879 F.2d 677, 681 (9th

Cir.1989) (citing United States v. Larionoff, 431 U.S. 864, 97

S.Ct. 2150, 53 L.Ed.2d 48 (1977)).

The Montana test has been previously applied with

regard to civil regulatory jurisdiction of the Tribes over

44a

nonmember lands on the Flathead Reservation. For exam-

ple, in Confederated Salish & Kootenai Tribes v. Namen, 665

F.2d 951, 964 (9th Cir.), cert. denied, 459 U.S. 977, 103 S.Ct.

314, 74 L.Ed.2d 291 (1982), a Ninth Circuit panel deter-

mined that the Tribes’ regulation of nonmember property

bordering Flathead Lake under a shoreline protection

ordinance was a permissible exercise of tribal authority

under second Montana exception because there was a

potentiality [sic] for serious impacts on the water quality

of the lake.

The EPA analyzed relevant case law, including Mon-

tana and Brendale, and determined that the Montana test is

still utilized by the United States Supreme Court in eval-

uating tribal regulatory jurisdiction over nonmember

lands. The EPA declined to interpret section 518(e) as a

direct grant of regulatory authority to tribes, although

there are some who do interpret section 518(e) in that

fashion.'° Instead, the EPA determined that it would

examine tribal authority on a case-by-case basis. In the

case of the Tribes, the EPA found sufficient facts to sup-

port the Tribes’ claim that pollution of the surface waters

traversing or appurtenant to non-member land would

have serious and substantial impact on the Tribes’ health

and welfare. Such fact finding by the EPA is entitled to

substantial deference. Arkansas v. Oklahoma, 503 U.S. 91,

112, 112 S.Ct. 1046, 1060, 117 L.Ed.2d 239 (1992); Central

Arizona Water Cons. Dist. v. Environmental Protection

Agency, 990 F.2d 1531, 1539-40 (9th Cir.), cert. denied, 510

10 See 56 Fed.Reg. 64879-80. See also Brief Amicus Curiae of

the Assiniboine and Sioux Tribes of the Fort Peck Reservation,

Montana.

ER Oe

45a

U.S. 828, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993). Even if

alternative findings could be supported by the adminis-

trative record, the EPA’s factual findings should be

upheld if they are supported by the administrative

record. Arkansas v. Oklahoma, 503 U.S. at 112, 112 S.Ct. at

1060.

Nevertheless, Plaintiffs assert that the EPA’ reading

of Montana and Brendale leads to an erroneous legal deter-

mination that the Tribes possess inherent regulatory juris-

diction over nonmember lands within the Reservation.

Their reading of Brendale and Bourland,"' in particular,

leads them to the conclusion that inherent tribal jurisdic-

tion exists only when there is a vacuum of state or federal

remedies. However, both Brendale and Bourland support

the continuing validity of the Montana test, and in Bren-

dale the Supreme Court used the Montana test to deter-

mine that the tribe did have regulatory jurisdiction over

the the [sic] Brendale property. Three Justices in Brendale

supported the continued use of the Montana test. 492 U.S.

'! South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309, 124

L.Ed.2d 606 (1993). In Bourland, the Cheyenne River Sioux Tribe

sought to regulate hunting and fishing activities of non-Indians

on the Oahe Reservoir, a federal facility within the exterior

boundaries of their reservation. The opinion cites Montana’s

general rule that the opening of Indian lands causes a tribe to

lose its treaty-based right to regulate non-Indian activities.

However, Bourland also goes on to cite the Montana exception

allowing for regulation of activities that threaten or directly

impact the political integrity, economic security, or health and

welfare of the tribe. Finally, the Bourland opinion remanded the

case back to the circuit court for review of the district court's

findings regarding the impact of non-Indian activities on tribal

health and welfare.

46a

at 462, 109 S.Ct. at 3024 (Opinion of Blackmun, J.). Four

other Justices support the use of a modified Montana test

that would require the tribe to show that there would be

“demonstrably serious impacts” on the tribe. Id. at

428-32, 109 S.Ct. at 3006-09 (Opinion of White, J.).!? Only

two Justices advocated distinguishing between open and

closed areas. Id. at 440-44, 109 S.Ct. at 3013-15. (Opinion

of Stevens, ].).

The Supreme Court subsequently considered Brendale

in County of Yakima v. Confederated Tribes and Bands of the

Yakima Indian Nation, 502 U.S. 251, 266-67, 112 S.Ct. 683,

692-93, 116 L.Ed.2d 687 (1992), and stated that Justice

White’s opinion (requiring “demonstrably serious

impacts”) is consistent with the test enunciated in Mon-

tana. Because Justice White’s opinion in Brendale essen-

tially set a stricter standard for the Montana test, EPA

determined that it would apply that stricter standard to

any tribe applying for TAS status.

The EPA also made several generalized findings in its

regulations:

1. The CWA constitutes a congressional find-

ing that impacts to water quality give rise to

impacts to human health and welfare.

2. Water quality standards must take into con-

sideration public water supplies, propagation of

tish and wildlife, recreational purposes, and

agricultural, industrial and other purposes.

'2 It is noteworthy that Justice White cites TAS status under

the CWA as providing an example of an express Congressional

delegation of tribal regulatory authority over non-Indian lands.

Brendale, 492 U.S. at 428, 109 S.Ct. at 3006-07.

47a

3. Because of the mobile nature of pollutants, it

is impractical to regulate stream segments

according to the member/nonmember checker-

board.

EPA’s expertise and experience in making these

determinations is not to be treated lightly. Also, the EPA’s

environmental regulatory policy is to avoid administra-

tive complexity such as checkerboarding and fractionaliz-

ing of reservations into trust and fee lands. This

regulatory policy serves as a foundation for EPA’s Indian

policy, which calls for a lead role for tribal governments

in managing programs to protect the reservation environ-

ment and its populace. See EPA Policy for the Administra-

tion of Environmental Programs on Indian Reservations,

(Nov. 8, 1984). This court should defer to the EPA’s exper-

tise and experience when it reconciles its environmental

policy with its Indian policy. State of Wash., Dept. of Ecol-

ogy v. EPA, 752 F.2d 1465, 1469 (deferring to EPA’ recon-

ciliation of environmental policy and Indian policy in

finding that states lack authority to administer Resource

Conservation and Recovery Act on Indian reservation).

The EPA also made a specific finding as to the Tribes’

inherent jurisdiction over surface waters traversing or

appurtenant to nonmember lands within the Reservation.

The EPA affirmed that the Tribes require clean water for a

domestic water supply and to maintain fish, aquatic life

and other wildlife for both subsistence and cultural rea-

sons. Because the Tribes had explicitly asserted that

impairment of tribal waters by activities of non-members

would have a serious and substantial effect on the health

and welfare of the Tribes, and because that assertion

corresponded to the EPA’s generalized findings, the EPA

48a

found that the Tribes’ possess inherent authority to set

water quality standards for all surface waters within the

Reservation. The EPA also found that the State failed to

demonstrate that such authority was lacking. The EPA's

finding was also based upon numerous instances of regu-

lated activities occurring on nonmember lands that

caused serious and substantial impacts of the Tribes’

water resources, including discharges from an RV park

and campground, discharges from sewage treatment

plants, discharges from a town’s storm drains, leakage

from gasoline service stations, diesel fuel spills, and gas

tank overflows.

7. Conclusion.

On the basis of the foregoing description of the EPA’s

reasoning and findings, and after careful consideration of

the arguments of the parties and review of the adminis-

trative record, this court finds that the EPA’s final deci-

sion is supported by the administrative record, consistent

with EPA’s regulations, and not contrary to law, and

should be upheld. Accordingly,

IT IS HEREBY ORDERED:

1. Proposed Intervenor’s motion for leave to file

memorandum of supplemental authorities (Docket #30) is

GRANTED.

2. Defendant Tribes’ motion for summary judgment

(Docket #47) and Defendant EPA’s motion for summary

judgment (Docket #43) are GRANTED.

3. Plaintiffs’ motion for summary judgment (Docket

#45) is DENIED.

iS a hh aed ew he ee eee 2 AIR BRS

—_—

le Ai Neal he Pa

49a

4. Defendant Tribes’ motion to strike initial brief of

intervenor and motion for summary judgment (Docket

#47) is GRANTED.

5. Defendant Tribes’ motion for leave to file errata

to brief in support of Tribes’ motion for summary judg-

ment (Docket #53) is GRANTED.

6. Proposed Intervenors’ motion for leave to file

response brief to initial briefs (Docket #57) is DENIED.

7. Proposed Intervenors’ motion for leave to file

reply brief and initial brief nunc pro tunc (Docket #64) is

DENIED.

IT IS FURTHER ORDERED that Plaintiffs’ complaint

is DISMISSED and all relief is denied.

The Clerk is directed forthwith to notify the parties

and the proposed Intervenors of entry of this order.

50a

(Logo) UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION VIII

999 18th STREET — SUITE 500

DENVER, COLORADO 80202-2466

FEB 27 1995

Ret: SWM-WO

Michael Pablo, Chairman

Confederated Salish and Kootenai Tribal Council

P.O. Box 278

Pablo, MT 59855

Dear Chairman Pablo:

| am pleased to inform you that the Agency approves

the Contederated Salish and Kootenai Tribes’ (CSKT)

application to administer a Clean Water Act (CWA)

§ 303(c) water quality standards program. Our approval

is based on the Agency's determination that the Tribes

meet the criteria for program approval found at 40 CFR

131.8(a). Please note that the scope of our approval ts

limited to administration of a CWA § 303(c) water quality

standards program within the exterior boundaries of the

Flathead reservation (i.e. all lands including non-Indian

owned lands). Pursuant to the federal water quality stan-

dards regulation at 40 CFR 131.4(c), one additional effect

of our approval is that the CSKT may also issue water

quality certifications consistent with CWA § 401. This

approval does not provide any additional implementa-

tion authorities (e.g. permitting, enforcement) beyond the

water quality standards and water quality certification

programs.

Sila

In approving the Tribes § 303(c) Application, we rec-

ognize that the State of Montana has raised concerns of

due process and participation of the non-Indian commu-

nity within the Reservation in water quality matters that

attect them. We are pleased that in your June 13, 1994

correspondence with Governor Racicot and during our

December, 1994 meeting with EPA Assistant Administra-

tor tor Water, Robert Perciasepe, you expressed strong

interest in developing a cooperative agreement that rec-

ogmizes this concern. Such an agreement would recognize

at the outset the CSKT authority to set water quality

standards and is consistent with the way in which you

provided joint Indian and non-Indian representation to

implement shoreline management of Flathead Lake. |

appreciate your willingness and commitment to develop

4 program which responds to concerns regarding partici

pation of non-Indian peoples within the reservation

EPA looks forward to working with the Confederated

Salish and Kootenai Tribes in the development, adoption,

and triennial review of water quality standards for sur-

tace waters of the Flathead reservation. EPA also com

mends the Tribes for the commitment to the environment

that is demonstrated by the Tribes’ existing water quality

program and your fine professional staff

If you have questions regarding the water quality

standards program please teel free to contact Dr. Robert

Erickson at (303) 293-1566 or Bill Wuerthele, EPA Region

Vill Water Quality Standards Coordinator, at (303)

52a

293-1586. I thank you for your cooperation and patience

in this matter.

Sincerely,

/s/ William P. Yellowtail

William P. Yellowtail

Regional Administrator

cc: Sam Morigeau, Director, CSKT Natural Resources

Department

53a

Decision DOCUMENT:

ArPPROVAL OF CONFEDERATED SALISH AND Koorenat Tripes

APPLICATION FOR TREATMENT AS A STATE

UNDER SecTION 303 of THE CLEAN Water Act

TABLE OF CONTENTS

l. Introduction

A. Purpose

B. Application

C. Chronology of events

Il. Requirements for TAS Approval.

A. Federal recognition

B. Substantial governmental duties and powers

-—C. Jurisdiction over “waters within the borders”

of the Flathead Reservation

D. Capability

Ill. Conclusions

IV. Appendix. Factual Analysis of Finding: Existing and

future activities on non-member owned fee lands

within the exterior borders of the Flathead Reserva-

tion have potential direct impacts on the health and

welfare of the Tribes and tribal members that are

serious and substantial.

A. Basis for Finding

1. Relationship of water quality and benefi-

cial uses to the health and welfare of the

Tribes and tribal members.

54a

Relationship of tribal lands to fee lands

and tribal waters.

3. Kinds of water quality degradation that

originate on fee lands and have potential

impacts on tribal waters that are serious

and substantial.

4. Examples of actions originating on fee

lands that have potential impacts on the

water quality and beneficial uses of

- tribal waters that are serious and sub-

stantial.

Pi)

Beneticial uses that may not be pro-

tected.

6. Degradation of tribal waters.

B. Finding

|. Introduction -

A. Purpose: The purpose of the Decision Docu-

ment is to provide the basis and supporting

information for EPA’s decision to approve the

April 22, 1992 Treatment as a State (TAS) Appli-

cation of the Confederated Salish and Kootena

Tribes (Tribes) to administer Section 3030

(Water Quality Standards program) of the

Clean Water Act (CWA). The approval applies

to the administration of the water quality stan.

dards program for waters that lie within the

exterior borders of the Flathead Reservation

B. Application: The Tribes’ Application for Treat.

ment as a State under Section 303 of the CWA

consists of three documents:

1) the Tribe's 303 application, dated Apri!

22, 1992;

;

PE ENE SIA A CTF AS CRE RE A TA tN ere

bel ARS: Seb Or eet

ihe to beet S

55a

2) pages 47 through 85 of Volume I of the

Tribes Application for Treatment as a

State under Section 404 of the CWA,

dated June 22, 1990, and incorporated by

reference into the Tribe’s 303 application;

and

an Addendum to the Confederated Salish

and Kootenai Tribe’s Application for

Treatment as a State under Section 303

and 404 of the CWA, dated July 13, 1993.

C. Chronology of Events

June 22, 1990 - Application for Treatment

as a State under Section 404 by the Con-

federated Salish and Kootenai Tribes.

April 22, 1992 - Application for Treat-

ment as a State under Section 303 by the

Confederated Salish and Kootenai Tribes.

July 13, 1992 - Addendum to Confeder-

ated Salish and Kootenai Tribes Applica-

tion for Treatment as a State under

Sections 303 and 404 of the CWA.

July 27, 1993 - Letter from Region VIII

Acting Administrator Jack McGraw to

Michael T. Pablo, Chairman, Confeder-

ated Salish and Kootenai Tribes. Applica-

tion for Treatment as a State under CWA

Section 303 considered by EPA to be com-

plete insofar as all required elements are

included.

July 27, 1993 - Letters to “Appropriate

federal entities” from Acting Region VIII

Administrator, Jack McGraw:

a. U.S. Corps of Engineers (US COE),

Omaha, Nebraska

56a

b. Flathead National Forest (USFS)

ce. Area Director, Bureau of Indian

Affairs (US BIA)

d. Supervisor, Lolo National Forest

(USFS)

e. State Supervisor, Montana State

Office, U.S. Fish and Wildlife Service

(US FWS)

August 17-September 9 — Responses from

“Appropriate federal entities” to Jack

McGraw, Acting Region VIII Administra-

tor.

a. August 17, 1993 —- USFS Response,

Lolo National Forest

b. September 23, 1993 - Flathead

National Forest

c. August 19 and September 2, 1993 -

COE Response

d. September 9, 1993 - USFWS Response

August 20-22, 1993 -— Publication of

Notice for Confederated Salish and

Kootenai Tribes Application to be treated

as a state for purposes of Section 303 of

the CWA (The Missoulian, Missoula, Mon-

tana).

September 16, 1993 — Response by State

of Montana to Application for Treatment

as a State by the Confederated Salish and

Kootenai Tribes to Jack McGraw, Acting

Regional Administrator, Region VIII.

(Included comments from the public.)

II.

57a

9. September 27, 1993 - Letter from Region

VIII Acting Administrator Jack McGraw

to the Honorable Marc Racicot, Governor,

State of Montana, regarding Confeder-

ated Salish and Kootenai Treatment as a

State under Section 303 of the CWA.

10. November 9, 1993 - Letter to Bob

Erickson, Region VIII, Water Quality

Branch, from Rhonda Swaney, Natural

Resources Dept. Head, The Confederated

Salish and Kootenai Tribes. Submission of

Draft Flathead Reservation Water Quality

Standards and request for technical

review.

Requirements for TAS Approval: Under Section 518(e)

of the CWA and EPA’s implementing regulation at 40

CFR Section 131.8 four requirements must be satis-

fied before EPA can approve a tribe's application to

administer a water quality standards program under

Section 303(c). These are: (1) The Indian Tribe is

recognized by the Secretary of the Interior and meets

the definitions in Section 131.3(k) and (1); (2) The

Indian Tribe has a governing body carrying out sub-

stantial governmental duties and powers; (3) The

water quality standards program to be administered

by the Indian Tribe pertains to the management and

protection of water resources which are within the

borders of the Indian reservation and held by the

Indian Tribe, within the borders of the Indian reser-

vation and held by the United States in trust for

Indians, within the border of the Indian reservation

and held by a member of the Indian Tribe if such

property interest is subject to a trust restriction on

alienation, or otherwise within the borders of the

Indian reservation; and (4) The Indian Tribe is rea-

sonably expected to be capable, in the Regional

58a

Administrator’s judgment, of carrying out the func-

tions of an effective water quality standards program

in a manner consistent with the terms and purposes

of the Act and applicable regulations.

Federal Recognition: The Confederated Salish

and Kootenai Tribes are a recognized tribe by

the U.S. Department of the Interior (58 Fed.

Reg. 54364, 54366, October 21, 1993).

Substantial governmental duties and powers:

Analysis under 40 C.F.R. Section 131.8(a)(2).

The Agency is satisfied that the Salish and

Kootenai Tribes (Tribes) of the Flathead Reser-

vation have a tribal Government currently car-

rying out substantial governmental duties and

powers over a defined area and that the Tribes

have met the requirements imposed by 40

C.F.R. Section 131.8(a)(2) for treatment as a

state under Section 303 of the CWA (CWA).

Background: 40 C.F.R. Section 131.8(a)(2)

requires that the “Indian Tribe has a governing

body carrying out substantial governmental

duties and powers.”

The Tribes’ descriptive statement demonstrat-

ing that the tribal governing body is currently

carrying out substantial governmental duties

and powers over a defined area is found at

pages 47 through 85 of Volume I of the Tribes’

Application for treatment as a state under Sec-

tion 404, dated June 22, 1990, incorporated by

reference into Volume I of the Tribes’ Applica-

tion for treatment as a state under Section 303,

dated April 22, 1992.

The Statement adequately: (1) describes the

form of tribal government; (2) describes the

59a

types of governmental functions currently per-

formed by the tribal governing body; and (3)

identifies the source of the tribal government's

authority to carry out the governmental func-

tions currently being performed.

The tribal Government was organized pur-

suant to the Indian Reorganization Act in 1935,

with its governmental functions conducted in

accordance with the powers and duties delin-

eated in the tribal Constitution. The tribal

Government and its departments engage in a

variety of governmental functions, from natu-

ral resources to human resources. These are

described in detail in the exhibits to Volume I

of the Tribes’ 404 Application, with additional

descriptive information contained in Volume I

of the Tribes’ 303 Application, referenced

above.

In addition, it should be noted that the Tribes

previously received approval on September 25,

1989 for treatment as a state under Section 106

of the CWA, at which time the Agency made a

determination that the Tribes have “a govern-

ing body carrying out substantial govern-

mental duties and powers.”

Jurisdiction over “waters within the borders”

of the Flathead Reservation: Analysis under

40 C.F.R. Section 131.8(a)(3).

The Agency is satisfied that the Salish and

Kootenai Tribes (Tribes) of the Flathead Reser-

vation have adequate jurisdiction to set water

quality standards for waters within the exte-

rior boundaries of the Reservation and have

adequately demonstrated that they meet the

requirements imposed by 40 C.F.R. Section

60a

131.8(a)(3) for treatment as a state under Sec-

tion 303 of the CWA (CWA).

Background: 40 C.F.R. Section 131.8(a)(3)

requires that “the water quality standards pro-

gram to be administered by the Indian Tribe

pertains to the management and protection of

water resources which are . . . within the bor-

ders of the Indian reservation.” The program

for which the Tribes are applying pertains to

the management and protection of water

resources which are within the borders of the

Flathead Reservation, and this approval is lim-

ited to waters within the borders of the Reser-

vation.

It should be noted that EPA is not today deter-

mining the scope of the Tribes’ regulatory

enforcement authority for all purposes. EPA is

today finding that the Tribes have sufficient

authority to determine the water quality stan-

dards for the Reservation. While the Tribes

may, in an independent action, enforce tribal

water quality standards, an EPA approved

water quality standards program need not be

implemented through enforcement in tribal

court. For example, EPA may issue federal per-

mits under Section 402 of the CWA, based

upon tribal water quality standards. Such per-

mits would then be enforced in federal court.

The Tribes’ assertion of civil regulatory juris-

diction within the Flathead Reservation is con-

tained in three documents: (a) Volume I of the

Tribes’ application for treatment as a state

under Section 303, dated April 22, 1992, (b)

Volume I of the Tribes’ 404 Application, dated

June 22, 1990, at pages 47 through 85, incorpo-

rated by reference into document (a), above,

6la

and, (c) Addendum to Confederated Salish

and Kootenai Tribes Application for Treatment

as a State under Sections 303 and 404 of the

CWA, July 13, 1993.

These documents were forwarded to the U.S.

Forest Service (USFS), the U.S. Army Corps of

Engineers (COE), the U.S. Fish and Wildlife

Service (USFWS), the Bureau of Indian Affairs

(BIA) and the State of Montana for comment

on the Tribes’ jurisdictional assertions, pur-

suant to 40 C.F.R. Section 131.8(c)(2). These

entities responded on August 17 and Septem-

ber 23, 1993 (USFS), August 19 and September

2, 1993 (COE), September 9, 1993 (USFWS),

and September 16, 1993 (State of Montana). As

the State of Montana raised a competing or

conflicting claim, the Region 8 Office of

Regional Counsel and the Office of General

Counsel consulted by telephone with the

Office of the Solicitor of the Department of the

Interior (DOI) on January 24, 1994 and May 31,

1994, pursuant to 40 C.F.R. Section 131.8(c)(4).

The Montana Operations Office of EPA Region

8 also published a local newspaper notice of

the Tribes’ application, inviting the public to

submit comments through the State of Mon-

tana. Numerous public comments were

received by EPA as attachments to the State's

letter of September 16, 1993, and the public

comments were duly considered by the

Agency before reaching this decision.

Tribal Jurisdiction: Having reviewed the juris-

dictional assertions of the Tribes and the com-

ments received from other Federal Agencies

and the State of Montana (including public

comments), and having consulted with DOI

——————

62a

the Agency has determined that the Tribes

have demonstrated adequate jurisdiction to

estavlish water quality standards within the

exterior boundaries of the Flathead Reserva-

tion.

Tribal authority over Reservation lands other than

fee lands owned by non-tribal members. With

regard to Reservation lands other than fee

lands owned by non-tribal members, the

Agency agrees with the Salish and Kootenai

Tribes that under well-established principles

of Federal Indian law, the Tribes have inherent

authority to establish water quality standards.

Indeed, the State of Montana only contests the

Tribes’ assertion of authority over fee lands.

Tribal authority over Reservation lands owned in

fee by non-tribal members.

Standard: In the preamble to the amendments

to the Water Quality Standards Regulation,

published on December 12, 1991 at 56 Fed.

Reg. 64876, the Agency set forth its analysis of

the scope of inherent tribal authority over res-

ervation lands owned in fee by nonmembers.

In that discussion, the Agency considered rele-

vant case law, including Montana v. United

States, 450 U.S. 544 (1981) and Brendale v. Con-

federated Tribes and Bands of the Yakima Nation,

492 U.S. 408 (1989), and elected to adopt an

interim operating rule” (56 Fed. Reg. at

64878-79) for determining, on a case by case

basis, whether an Indian Tribe has authority

over reservation lands owned in fee by non-

members (fee lands).

The operating rule is based on the finding in

Montana that “a tribe may also retain inherent

63a

power to exercise civil authority over the con-

duct of non-Indians on fee lands within its

reservation when that conduct threatens or has

some direct effect on the political integrity, the

economic security, or the health or welfare of

the tribe.” Montana, 450 U.S. at 565-66. The

operating rule requires a further showing that

the “potential impacts of regulated activities

on the tribe are serious and substantial.” 56

Fed. Reg. at 64878.

The State of Montana’s comments did not pro-

vide data pertaining to the Tribes’ assertions

that impairment of waters on reservation fee

lands may have effects on the health and wel-

fare of the Tribes that are serious and substan-

tial. Since the Tribes’ submittal met the initial

requirements imposed on them by the regula-

tion, the State submittal should have presented

any available data demonstrating that impair-

ment of waters by activities on fee lands

would not have potential effects on the health

and welfare of the Tribes that are serious and

substantial. 56 Fed. Reg. 64879. EPA carefully

evaluated the State’s submission and deter-

mined that the State did not provide informa-

tion that would cause the Agency to conclude

that the Tribes’ assertions were unsupported.

The State contended that it had no opportunity

to submit facts contesting the Tribes’ assertion.

However, as provided by the regulation, the

State was provided notice as to the substance

of the Tribes’ assertion of authority and was

given thirty days within which to submit

information sufficient to establish a competing

64a

or conflicting claim under the applicable regu-

lation. 40 CFR Section 131.8(c)(2)-(4). The State

did not submit such information.

Accordingly, having considered the arguments

the State submitted, and having consulted

with DOI on these questions, EPA has -con-

cluded: 1) that the Tribes have demonstrated

that they possess the requisite regulatory juris-

diction, and 2) that the State has not estab-

lished that the Tribes lack jurisdiction.

The State also asserts that the jurisdictional

test established in the preamble to the regula-

tion is not proper. EPA, having consulted with

DOI, does not agree.

The State’s position is that EPA should apply

the general rule established in Montana v.

United States, 450 U.S. 544 (1981), that the

Tribes lack jurisdiction on fee lands and the

exceptions to that rule apply only in “narrow,

fact-based circumstances.” In fact, EPA’s oper-

ating rule, established and discussed at 56 Fed.

Reg. 64878-79, was based upon the principles

set forth in the Montana case. In adopting its

operating rule, the Agency reviewed the

Supreme Court’s decision in Brendale v. Confed-

erated Bands and Tribes of the Yakima Nation, 492

U.S. 408 (1989) and determined that the hold-

ing of the Court in Brendale was consistent

with the Montana test. In the subsequent

Supreme Court opinion in South Dakota v.

Bourland, 508 U.S., 113 S. Ct. 2309 (1993), the

Court remanded a portion of the case pertain-

ing to jurisdiction over nonmember activities

on fee lands to the District court for consider-

ation under the Montena rule. The Agency

1 a gh gg A NAO: Pe NA Kawi PSS SL: haat aot dil F a, ca al

obi Q ign

65a

believes that the Bourland opinion is thus con-

sistent with the Court’s Montana and Brendale

decisions and with the Agency’s 1991 analysis.

The Agency also believes that the exceptions

to the Montana rule, allowing tribal jurisdiction

where there is potential for direct impacts on

tribal health and welfare, are appropriately

applied in this case. In addition, it should be

noted that the Agency operating rule asks

Tribes to show that the impacts required by the

Montana rule be more than de minimis; in fact,

the Agency rule asks, and the Tribes have

demonstrated, that these impacts be “serious

and substantial.”

The Tribes also contend that the CWA dele-

gates authority for approved Tribes to regulate

water quality for all sources within the exte-

rior boundaries of the Reservation and that the

CWA preempts the State from regulating water

quality within the Reservation. The Tribes’

position is based on language in the Act

authorizing approval of a tribal program for

functions “within the borders of an Indian res-

ervation,” 33 U.S.C. Section 1377(e)(2), and

defining a Reservation as “all land within the

limits of any Indian reservation . . . notwith-

standing the issuance of any patent.” 33 U.S.C.

Section 1377(h)(1).

EPA regulations governing reservation water

quality standards do not construe the CWA as

delegating authority to Tribes over all reserva-

tion sources, or as preempting State regula-

tion. 56 Fed. Reg. 64880. Nevertheless those

regulations do explicitly request each Tribe “to

outline all bases for concluding that the Tribe

has adequate authority” to set water quality

66a

standards on the reservation, noting that such

a discussion “can only help EPA to make a

proper determination” as to the appropriate-

ness of approving the tribal water quality stan-

dards program. 56 Fed. Reg. 64881. The

portion of the tribal submission discussing del-

egation and preemption complies with the

Agency’s explicit request in this regard, and is

therefore appropriate for consideration. To the

extent the Tribes’ position is correct, it would

provide support for EPA’s determination.

Finding: EPA finds that existing and future

activities on fee lands within the exterior bor-

ders of the Flathead Reservation having poten-

tial direct impacts on the health and welfare of

the Tribes and tribal members that are serious

and substantial. The facts upon which the

Agency has based this finding are set forth in

the Appendix.

In making its finding, the Agency has relied on

its special expertise and practical experience

regarding the importance of water manage-

ment, recognizing that clean water, including

critical habitat (i.e., wetlands, spawning beds,

etc.) may be crucial to the survival of the Flat-

head Reservation.

Based upon its special expertise and practical

experience, the Agency also believes that the

activities regulated under the CWA generally

have impacts on human health and welfare

that are serious and substantial. As discussed

at 56 Fed. Reg. 64878, this finding is consistent

with our belief that the CWA itself constitutes,

in effect, a legislative determination that activ-

ities which affect surface water quality and

critical habitat quality may have impacts on

At PRET ORME De PSE ANS Baap D8 ater INS YO AS oO iy ee ee PO PTS, Seon IN

67a

human health and welfare that are serious and

substantial.

Additionally, the Agency is mindful that,

because of the mobile nature of pollutants in

surface waters and the relatively close prox-

imity of stream segments and lake waters on

fee and trust lands within the Flathead Reser-

vation, it would be practically very difficult to

separate out the effects of water quality

impairment on fee lands within the Reserva-

tion from those on tribal portions. In other

words, it is highly probable that any impair-

ment occurring on, or resulting from activities

on, fee lands will impair the water and critical

habitat quality of the tribal lands. Similarly,

the serious and substantial effects of water

quality impairment within the non-member

portions of the Reservation are very likely to

affect the tribal interest in water quality.

EPA also believes that Congress has expressed

a preference for tribal regulation of surface

water quality to assure compliance with the

goals of the CWA (see 56 Fed. Reg. at

64878-79). EPA interprets Section 518 of the

CWA, in providing for the treatment of Indian

Tribes as States under Section 303 of the Act,

as authorizing Tribes to assume a primary role

in setting water quality standards on reserva-

tions. A checkerboard system of regulation,

whereby the Tribe and State split up regulation

of surface water quality on the reservation,

would ignore the difficulties of assuring com-

pliance with water quality standards when

two different sovereign entities establish stan-

dards for closely intermixed stream segments.

56 Fed. Reg. 64878.

68a

The generalized findings regarding the rela-

tionship of water quality to tribal health and

welfare affect the legal analysis of the Tribes’

submission by, in effect, supplementing the

Agency’s factual findings contained in the

Appendix. In accordance with 56 Fed. Reg. at

64879, the Tribes have made a showing of facts

that there are waters within the Reservation

used by the Tribes or tribal members (and thus

that the Tribes or tribal members could be

subject to exposure to pollutants present in, or

introduced into, those waters) and that the

waters and critical habitat of the Reservation

are subject to protection under the CWA. The

Tribes have also asserted that impairment of

such waters by the activities of nonmembers

would have an effect on the health and welfare

of the Tribes that is serious and substantial.

Based upon the facts available to the Agency

from the Tribes and other sources, as pre-

sented in the Appendix, and in light of the

generalized statutory and factual findings dis-

cussed above, the Agency believes that the

Tribes have demonstrated that the protection

of water quality sought to be carried out by

setting water quality standards for water on

fee lands on the Flathead Reservation would

protect against potential impacts on tribal

health and welfare that are serious and sub-

stantial.

Thus, the Agency believes that the Tribes have

successfully demonstrated adequate authority

to establish water quality standards within the

Flathead Reservation and that the Tribes have

met the requirements of 40 C.F.R. Section

131.8(a)(3).

Fe Ri eR BS AD PRLS 5S TiO TA eS IN BES a Fess

atte S44 att

Saeed et ie

69a

Capability: The Confederated Salish and

Kootenai Tribes have demonstrated that they

are reasonably capable of establishing and

implementing a water quality standards pro-

gram that will comport with the requirements

of the CWA. In determining that the Tribes

have the capability to establish and implement

an adequate water quality standards program,

the Agency considered that the tribes:

Have developed and staffed a Natural

Resources Department which has the

legal authority to carry out the mission

of the water quality standards program;

Having enacted the Water Quality Man-

agement Ordinance (89-B, Title I of the

Tribal Water Code) to ensure that, “the

quality of the water resources of the Flat-

head Reservation be protected, restored

and maintained in conformance with the

tribal Administrative Procedures Ordi-

nance S6B, May 24, 1991; and

Have drafted interim water quality stan-

dards regulations that have been infor-

mally reviewed by EPA. These standards

include the CWA basic requirements of

identifying and designating beneficial

uses for tribal waterbodies, identifying

water quality criteria to protect those

beneficial uses, and a policy on anti-

degradation.

Details are provided in Volume II of the

Section 303 TAS application. Following a

review of the materials in Volumes I and

Il of the Application for TAS, the Agency

concluded that the Tribes had demon-

strated capability. (Reference: Memo to

70a

File from Bob Erickson, Application of the Confed-

erated Salish and Kootenai Tribes of the Flathead

Nation for Treatment as a State for purposes of the

establishment and implementation of a water qual-

ity standards program.)

Ill. Conclusions: The Agency has determined that the

Confederated Salish and Kootenai Tribes of the Flat-

head Reservation have met the requirements of 40

CFR Section 131.8 and are eligible to be treated as a

state for purposes of Section 303(c) of the CWA.

/s/ William P. Yellowtail

William P. Yellowtail 2/27/95

Regional Administrator

EPA Region 8

Appendix

Factual Analysis of Finding: Existing and future

activities on non-member owned fee lands

within the exterior borders of the Flathead Res-

ervation have potential direct impacts on the

health and welfare of the Tribes and tribal mem-

bers that are serious and substantial.

A. Basis for Finding

The following information is organized to develop

and present evidence showing the relationship between

activities originating on non-member owned fee lands

(fee lands) and impairment of water quality and benefi-

cial uses. The first four headings discuss:

enh Su LOS,

This is

71a

How water quality and beneficial uses affect the

health and welfare of the Tribe;

How tribal and fee lands are related to tribal

waters;

The general kinds of water quality degradation

which originate on fee lands and influence tribal

waters; and

Specific examples of actions that originate on fee

lands which have the potential to impair water

quality and beneficial uses of tribal waters.

followed by a discussion of:

Tribal beneficial uses that may not be profected

by State standards; and

State/tribal antidegradation differences that have

potential impacts on welfare of the Tribes that are

serious and substantial.

Relationship of water quality and beneficial

uses to the health and welfare of the Tribes and

tribal members.

The Federal Water Pollution Control Act (CWA) of

1972 and subsequent amendments call for the mainte-

nance and restoration of the physical, chemical and bio-

logical integrity of our nation’s waters. The quality of

water above and within the stream or lake bed and the

quality

of the stream or lake beds themselves have a

direct effect on this goal.

The integrity of our nation’s waters is directly related

to water quality standards that are intended to assure the

full protection of all existing uses and designated uses

identified by States and Tribes. Beneficial uses typically

72a

include, but are not restricted to, domestic water supply,

fish and aquatic life, recreation in and on the water,

wildlife, agriculture, industrial and navigation uses.

Water quality standards that provide full protection of

beneficial uses affect tribal health and welfare in the

following ways:

e The full protection of domestic water sup-

plies ensures that human health will be

directly protected from disease and from

exposure to toxic materials at acute or

chronic levels as a result of exposure through

drinking water uses. This protection is basic

to the health and welfare of tribal members;

e¢ The full protection of fish and other aquatic

life assures that aquatic ecosystems will func-

tion to cycle energy, to aid in the detoxifica-

tion of contaminants and to provide the

diversity and productivity of life within

tribal waters. These functions, in turn, enable

aesthetic, educational /scientific, recreational,

and good goals of the Tribes to be achieved

and directly affect the welfare of the Tribe.

The full protection of the aquatic life use also

helps ensure the economic well being of the

Tribes and tribal members through harvest of

fish and other aquatic life and encourage-

ment of water-based recreation businesses;

e The full protection of recreation in and on

the water affects tribal welfare by allowing

tribal and non-tribal citizens the recreational

use of waters for body contact during play

and sport without undue threat of disease or

loss of aesthetic pleasure. The economic well

being of the Tribes and tribal members is

enhanced through harvest of aquatic life and

eM! eo ne

73a

encouragement of ecological and water-

based recreation;

e The full protection of wildlife uses helps

assure that birds, mammals, reptiles, and

amphibians that use and depend upon tribal

waters as a source of water, food, or habitat

will maintain the species diversity and pro-

ductivity that tribal lands and waters are

capable of supporting. Protection of the wild-

life use also protects the health of tribal

members from toxins that can accumulate in

wildlife and be passed to humans. In addi-

tion, protection of the wildlife use helps

ensure the economic well being of the Tribes

through providing ecological and water-

based recreation;

e The full protection of agricultural uses helps

assure the economic welfare of the Tribes

through protection of crops and assures pro-

tection of the health of tribal members

through control of contaminants that enter

crops through irrigation from tribal waters;

e The full protection of industrial and naviga-

tion uses helps assure the economic welfare

of the Tribes through control of contaminants

that may be costly to industrial or navigation

uses through corrosion or interference with

industrial processes.

Relationship of tribal lands to fee lands and

tribal waters.

The attached map shows the types of land ownership

that exists within the Flathead Reservation. Tribal and

Indian-owned fee lands are estimated to include 54-58%

74a

of the area within the boundary, including Flathead Lake

itself (personal communication, CSKT, Natural Resources

Dept). The Tribes consider all waters within the exterior

boundaries to be waters of the Flathead Reservation.

Tribal lands include most of the headwater streams

and lakes on the western, eastern and southern borders of

the Reservation. In addition, lands surrounding the Flat-

head River, lands to the east of Flathead Lake, and

smaller parcels scattered between fee lands are tribal

lands. The majority of the central valley area is in fee

land.

The reservation is drained by five major watersheds

and two lesser ones. The major watersheds are the Flat-

head, Jocko, and Little Bitterroot Rivers and Mission and

Crow Creeks.

e The largest river, the Flathead River below

Flathead Lake, is surrounded by tribal lands,

but much of the drainage to the river is from

fee lands. All of the other major systems

drain into the Flathead River within the Res-

ervation.

¢ The Jocko River drains most of the south-east

portion of the Reservation. It is surrounded

primarily by fee lands in the low-lying areas

and enters the Flathead River near the

National Bison Range.

e The Little Bitterroot River drains the largest

land area within the Reservation, covering

the north-west and central portion of the

Reservation. Most of this river flows through

fee lands and enters the Flathead River a few

miles upstream of Crow Creek.

75a

¢ Mission Creek drains the eastern portion of

the Reservation, flows through the northern

portion of the National Bison Range (federal

land) and enters the Flathead River 2-3 miles

upstream of the Jocko River confluence. Most

of this drainage flows through fee lands.

e The Crow Creek basin lies just to the north of

Post Creek and drains the central-eastern

portion of the Reservation. Most of the drain-

age flows through fee lands and enters the

Flathead River approximately in the center of

the Reservation.

3. Kinds of water quality degradation that origi-

nate on fee lands and have potential impacts on

tribal health and welfare that are serious and

substantial.

Specific examples of water quality effects originating

on fee lands are provided later in this Appendix. The

following provides a basis for assessing the significance

of these specific examples by describing the kinds of

water quality impacts and their potential effects on bene-

ficial uses. (EPA does not imply that these effects are only

limited to actions originating on fee lands.) EPA believes

that the kinds of water quality degradation that result

from activities on fee lands can adversely affect beneficial

uses and therefore have potential impacts on tribal health

and welfare that are serious and substantial. Establish-

ment of water quality standards for all waters on the

reservation enables the Tribe to set appropriate water

quality goals to aid in avoiding these potential impacts.

Degradation of water quality as a result of activities

originating on fee lands are primarily related to the fol-

76a

lowing kinds of effects.

Increases in water turbidity and deposition

of fine sediments on stream and lake bottoms

result from agricultural practices on fee

lands (CSKT, Water Management Program,

field reports 1990-1993). Turbidity and fine

sediments can negatively affect aquatic life in

tribal waters by reducing photosynthesis of

plant life, by interfering with sight feeding of

fish, by smothering fish eggs and insect life,

and by reducing the habitat available for

food organisms and spawning of fish.

The result of increased turbidity and sedi-

ment deposition can be a lower growth rate

of fish from loss of food resources and/or

elimination or significant reduction of

spawning success in streams. Fish popula-

tions in both the streams and the lakes to

which they are tributary may decline. This

could be particularly important to the west-

slope cutthroat trout (rare in Flathead Lake)

which is dependent upon the habitat and

water quality of tributary streams for spawn-

ing.

As herbicides and pesticides are used on Res-

ervation fee lands, increases in loadings of

these substances can result from agricultural

runoff from these lands (runoff may be a

result of irrigation use of waters, precipita-

tion or both). Depending on the concentra-

tions, these loadings may cause direct

mortality or reduction of growth and repro-

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.